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Jill has been blogging for Feministe since 2005.
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29 Responses

  1. Kelley
    Kelley April 11, 2006 at 10:04 am |

    Oh, those poor boys. When a woman is drunk, stoned, passed out, whatever, they would actually have to take responsibility for their own actions. They might actually have to engage the brains contained within their skulls. They might, horror of horrors, have to assess the situation critically. It would go a little something like this:

    Hey, this woman is drunk. Yeah, she may be flirting, but she’s clearly intoxicated. That means she’s likely incapable of consent. I’m gonna use my better judgment and not take advantage of her intoxication.

    Yeah, we’d hate it if men actually had to do that.

    *Sigh*

  2. Gabriel Malor
    Gabriel Malor April 11, 2006 at 10:32 am |

    Hey, this woman is drunk. Yeah, she may be flirting, but she’s clearly intoxicated. That means she’s likely incapable of consent. I’m gonna use my better judgment and not take advantage of her intoxication.

    I wonder, would this be equally acceptable:

    “Hey, this man is drunk. Yeah, he may be flirting, but he‘s clearly intoxicated. That means he‘s likely incapable of consent.”

  3. zuzu
    zuzu April 11, 2006 at 10:43 am |

    Of course it would be equally acceptable, Gabriel, if women were raping men.

  4. Gabriel Malor
    Gabriel Malor April 11, 2006 at 11:04 am |

    Hypothetical:

    A drunk man and a drunk woman stagger back to his place from a bar. They are both drunk to the point where neither can give consent. They have sex. The next day she goes to the police and tells them she’s been raped. (Let’s assume that both parties are operating in good faith.)

    Questions:
    1) Is his failure to give consent to sex a defense to the charge of rape against him?
    2) Does his failure to give consent to sex give rise to a claim of rape against her?
    3) Are men allowed (legally) to claim rape in this situation or do ADAs just laugh such claims away?
    4) Are men allowed (socially) to claim rape in this situation? Why or why not? Should that be changed?

    My Answers:
    1) Most modern rape statutes require only intercourse with a person by force or threat of force against the will of the victim and without the consent of the victim.

    IOW, even in cases where neither person consents, both parties could claim rape. This is a fundamental problem with the way consent is treated.

    Note the aberation: even where neither party is capable of consent, sex has occurred.

    2) Most rape statutes are gender neutral. He does have a claim of rape since he did not consent.

    3 & 4) I’m not sure a man could get away with this because the DA wouldn’t be interested and/or he couldn’t socially make the claim.

  5. Kelley
    Kelley April 11, 2006 at 11:16 am |

    Gabriel, your answer illuminates precisely the phenomenon the article espouses. Rather than looking at the real causes of rape, i.e. the male sense of entitlement to sex and to women’s bodies, and social power inequalities between men and women, you’re saying, essentially: But…but…but…what about the women? They can take advantage of drunken men.

    Rather than trying to displace the blame for the almost exclusively male-perpetuated phenomenon of rape, try examining male behavior and the male sense of sexual entitlement. Try examining and critiquing the societal tools that enable men to continue thinking in this fashion. Entirely too much attention is focused on the behavior of women, as if we are some sort of moral standard-bearer. If there is a sexual assault, then of course, the woman must be somehow to blame? That’s an absolutely ludicrous argument.

    She was drunk? She was asking for it. Should have been more careful.

    She’s a stripper? Well, you can’t rape a stripper. Her consent is obviously implied because she works in the sex industry.

    There is no other crime where the victim is so routinely excoriated. A burglary victim who left a window unlocked is not described as “asking for it”. A victim of a pickpocket is not criticized for being inattentive. Why should rape victims ever be blamed??

    It’s not the behaviour of the victim that is the issue. It’s the behaviour of the rapist. Period.

  6. Chet
    Chet April 11, 2006 at 11:18 am |

    How much alcohol does a woman have to consume before she cannot give consent?

  7. Magis
    Magis April 11, 2006 at 11:44 am |

    Gabriel Manor:

    If we may assume the male entered the body of the female and we may presume that he was neither tied up or passed out (and maintained an erection) he cannot claim he did not consent. While not impossible, it is pretty difficult in most situations for a female to “use” a male against his will or without his consent.

    In the hypothetical case it would go to the “value” of the female’s memory; i.e., how drunk was she? Does she have a clear memory of saying no? Was she passed out when intercourse took place? Drunkedness of the male (or anyone) is not a defense in rape or any other crime. Of course, there may be other “forensic” evidence not included in the scenario.

  8. Gordon K
    Gordon K April 11, 2006 at 11:54 am |

    A better way to say it, I think, would be “Yes, just like people leaving their car keys on the hood causes auto theft.”

    In other words, the rapist (auto thief) is still doing something immoral, and it’s still going to be bad if you’re raped/your car is stolen; at the same time, why would you “allow” that to happen? Giving up control of the situation (of car keys, or of your judgment) isn’t a wise thing to do when you’re not in a safe environment.

  9. Xocolotl
    Xocolotl April 11, 2006 at 12:01 pm |

    Legally? Depends on what the laws are in your area. Socially? Depends on the woman in question, I suppose. We all have different limits. But I think it’s safe to say that if you know a woman’s been drinking, and her judgement may be at all impaired, don’t try to sex her up.

    Easy test: Imagine that you were in the same condition as the particular woman. If you had sex with a male acquaintance (we’ll use a man in hopes of bypassing the “women can’t rape men” myth) in that state, would it be consensual?

  10. Gabriel Malor
    Gabriel Malor April 11, 2006 at 12:05 pm |

    Magis:

    If we may assume the male entered the body of the female and we may presume that he was neither tied up or passed out (and maintained an erection) he cannot claim he did not consent. While not impossible, it is pretty difficult in most situations for a female to “use” a male against his will or without his consent.

    Okay. I think maybe we’re just going to have to disagree about this. I think it’s possible for a man to have sex without his consent. I can see you’re skeptical about that. In my experience, it is entirely possible for a man who is passed out or impaired due to alcohol or drugs to maintain an erection. But maybe that’s not generally the case.

  11. Kelley
    Kelley April 11, 2006 at 12:11 pm |

    “Giving up control of the situation (car keys, or your judgment) isn’t a wise thing to do when you’re not in a safe environment.”

    Who is it that makes said environment unsafe??? It’s men who prey on women!!! That’s precisely the point. It’s the men who commit the vast majority of rapes (I won’t touch the women can rape men, too, argument). Men are creating the unsafe environments. To say otherwise is to blame women for men’s behavior.

    So what if a woman wants to drink to the point of intoxication. That does NOT make it acceptable for a man to abdicate his own good judgment. It does NOT mean she is asking to be raped. It most certainly does NOT mean she placed herself in a dangerous situation. The situation only becomes dangerous when a man decides to either ignore or take advantage of a woman’ s intoxication. Drinking too much does not signal willingness to be raped.

  12. Gabriel Malor
    Gabriel Malor April 11, 2006 at 12:12 pm |

    Xocolotl:

    But I think it’s safe to say that if you know a woman’s been drinking, and her judgement may be at all impaired, don’t try to sex her up.

    Easy test: Imagine that you were in the same condition as the particular woman. If you had sex with a male acquaintance (we’ll use a man in hopes of bypassing the “women can’t rape men” myth) in that state, would it be consensual?

    Xocolotl, I think that’s a reasonable (and certainly a safer) position to hold. But, won’t Kelley and Jill accuse you of still focusing on the woman’s conduct? Yes, your guideline must be applied by men, but you are asking men to take into account a woman’s conduct.

    The reason I’m pointing this out is because I believe it takes two. Focusing on just the woman or just the man is non-sensical.

    Regarding your test: I’m a little bit confused by it (which may be just my general inability to read). Are you saying “Imagine that you were in the same drunk condition as the particular woman who could not consent. If you had sex with a guy acquaintance, would it be consentual.”?

    Well, obviously not. (This is why I’m not sure I got your question right.) Clarify?

  13. Magis
    Magis April 11, 2006 at 12:22 pm |

    Why is it that some people cannot differentiate between exercising bad judgement and culpability for rape?

    You can say that getting intoxicated is dangerous behavior for any person at time. It can always be said to be bad judgement to be out of control. That is far different than saying the person has full culpability for his/her behavior.

    But let us posit that a man gets intoxicated and is stumbling through the bar’s parking lot to his car. Another driver, leaving the lot sees him doing so. Incensed at this, he purposely swerves and runs the drunk over, killing him. Automobile homicide or free pass? The drunk deserved what he got?

    Let us try another one. Woman is drunk but gives consent. Man and woman have sex. Woman passes out. Man steals her credit card. Woman thinks maybe she just lost until charges start piling. Woman goes to police, has man charged with theft, not rape, theft. Does he get a pass or no?

  14. R. Mildred
    R. Mildred April 11, 2006 at 2:45 pm |

    This change in the law isn’t going to stop the alley rapists or the rohypnol rapists – it’s going to be targetting the drunk guys who go home with a drunk girl.

    …This has been the ass backwards fucktardy Orwell service.

    Everyone should, by now, know that the rate of stranger rapists (rohypnol rapists/alley rapists) are tiny compared to the number of aquaintence rapists who fuck unconcious or barely concious drunk women, and that that last sentence by that guy doesn’t even BEGIN to make sense unless you assume that there’s aslo been a rash of non-sensical, unjustified, rape allegations in britain recently.

    I guess he must have been too busy raping one of those “consenting” unconcious woman to add That little factoid.

  15. M. Hax
    M. Hax April 11, 2006 at 3:01 pm |

    Women shouldn’t get drunk since its particularly dangerous, especially for women in a dark part of town. Don’t be stupid, or you’re just asking for trouble.

    Men shouldn’t rape.

    I think we can all agree on that, what men and women should and should not do, right?

  16. Marcella Chester
    Marcella Chester April 11, 2006 at 3:08 pm |

    This change in the law isn’t going to stop the alley rapists or the rohypnol rapists – it’s going to be targetting the drunk guys who go home with a drunk girl.

    … and who believed they could get away with rape because they weren’t alley rapists!

    Despite what so many people believe, rape in this situation isn’t just morning-after regrets by one active sexual partner against the other.

  17. Nomie
    Nomie April 11, 2006 at 3:57 pm |

    So my friend who was sexually assaulted by another friend shouldn’t have been drinking… in her own house?

    Seriously. What the fuck.

  18. ginmar
    ginmar April 11, 2006 at 4:39 pm |

    I posted this on the other topic, but what the hell.

    If you want to understand rape, understand it’s myths. Here are some of the basics:

    These are the myths about rape. Seeing as how I have yet to see this discussed, I’m quoting from Virgin or Vamp: How the Press Covers Sex Crimes, by Helen Benedict. Go buy it immediately.

    ” Rape is sex.
    This is the most powerful myth about rape lies at the root of all the others. It ignores the fact that rape is a physical attack and leads to the mistaken belief that rape does not hurt the victim any more than does sex. The idea that rape is a sexual rather an aggressive act encourages people not to take it seriously as a crime—an attitude frequently revealed in comments by defense attorneys and newspaper columnists. (My emphasis: What, you mean newspaper writers aren’t totally neutral and pure?)

    The assailant is motivated by lust
    Because rape is seen as sex, the assailant is assumed to be a hot-blooded male driven beyond self-control by lust. In fact, research has shown that far from being frustrated men with no other sexual outlet, most rapists have normal sex lives at home, and many of them are married. The motivation to rape stems most commonly from agner, the need to dominate, and terrify, or more rarely, from sadism, not from pent-up sexual desire.

    The assailant is perverted or crazy
    Teh image of a rapist as perverted, ugly, seedy, or insane contradicts the preceeding hot-blooded male myth, but it is held in reserve, as it were, for times when the sex crime is extremely grotesque or when the victim cannot easily be pegged as having provoked it. Yet repeated studies have found that rapists usually have normal psychological profiles compared to other criminals. The majority of rapists are known to their victims—they are relatives, boyfriends, husbands, teachers, doctors, neighborhood friends, colleagues, therapists, policemen, bosses—-not seedy loners lurking in alleyways.

    The assailant is usually black or lower class
    This essentially racist perception leads to the widely held misconception that most rapes are committed by black men against white women, or by lower class men against higher classe women—a conception bolstered by the press, which tends to give these stories more play than other kinds of rapes. It is true that proportionally more rapes are committed by the urban poor, but the majority of rapes occurr between members of the same race and class. According to a U.S. Department of Justice study conducted between 1973 and 1987, 68 percent of white women and 80 percent of black women are raped by men of the same race. The study also found that 57 percent of all rapists are white, 33 percent black, and the rest are either of mixed or other races.

    Herehttp://ginmar.livejournal.com/15082.html

    and here

    and here

    and finally here.

    Bottom line is, you can see all those suppositions in these discussions, and it has to stop.

  19. nik
    nik April 11, 2006 at 4:44 pm |

    Gabriel Malor;

    Currently, you can give drunken consent in the UK and that consent is valid. So the problem you talk about in #4 doesn’t arise. It’s only currently rape if you don’t consent/are incapable of giving consent.

    The government is thinking about introducing the change you talk about (making “drunken” consent invalid) in order to increase convictions. I think it’d be a disaster for the reasons you mentioned.

    The poster campaign’s also downright homophobic.

    R. Mildred;

    There have been a number of rape cases in the UK that have been abandoned because the witness could not remember what happened. The defendent said she consented, and the witness could recall sex, but was drunk and could not remember whether she consented or not. As a consequence the cases were abandoned because of lack of evidence. (Has she been unconscious she would not have been able to consent and the prosecution would have continued.)

    This has raised strong feelings. One group think drunken consent isn’t consent and the prosecution should have taken place, the other think it’s a disgrace to bring someone to court based on the testimony of an eyewitness who can’t remember what happened.

    That’s why this is a bit of an issue at the moment.

  20. Chet
    Chet April 11, 2006 at 6:03 pm |

    Easy test: Imagine that you were in the same condition as the particular woman. If you had sex with a male acquaintance (we’ll use a man in hopes of bypassing the “women can’t rape men” myth) in that state, would it be consensual?

    See, I can’t imagine a situation where I was so drunk that I would come on to a male aquaintance without intending to have sex with him, where I would say “yes let’s have sex” and not mean it. I’m sure that’s not the answer you were looking for but it’s the honest answer, for me.

    A question for you – if I were as drunk as a woman who couldn’t consent (however drunk that was) even though she could say “yes let’s have sex”, and I robbed a bank, would I still be culpable? Or do I lack the mental clarity to be culpable for a crime?

    Some people hold their liquor surprisingly well. And it’s very hard indeed to determine how drunk other people are when one is drunk oneself. I’m not trying to excuse rapists, and there’s a major difference to me between using alcohol or drugs to ply and manipulate another person, and two people simply doing something they probably wouldn’t have done, sober. People get drunk because alcohol lowers inhibitions. That’s a basic fact, isn’t it? So why is it when two sufficiently drunk people have sex, the man is the rapist and the woman the victim? Why isn’t it the other way around? Or both at once? I’m nervous about asking because I know the people I detest make the same argument.

  21. NIamh
    NIamh April 11, 2006 at 6:21 pm |

    Are you sure of your facts nik? I have to admit that I’m not, but my understanding of that case is that the witness was unconscious during the “sex” and the argument was made that she might have consented earlier in the evening for her body to be used as a masturbation aid while she was passed out– she had no recollection of not giving such permission so the case was dismissed. If she was conscious while being penetrated as you say, why couldn’t she say no during the act itself? I mean, I’ve had memory gaps before like any self-disrespecting Irishwoman, but I’m pretty damn sure that if I could remember someone putting his dick in me I’d be able to remember whether he was doing that consensually or not. It’s not a minor detail the way your account of the case would suggest.
    Gotta say, “consent” is pretty much a red herring here, to me. If someone says “yes, you can have sex with me” or even if someone begs you for sex all night, and then promptly passes out drunk, you’re still a rapist if you fuck them. Not because they were too drunk to want sex or consent to sex, but because they were too drunk to bloody HAVE sex. Becuase they weren’t sufficiently in control of their body to participate in a mutual sex act. Please tell me that’s not some kind of wacko fringe belief?

  22. Chet
    Chet April 11, 2006 at 7:18 pm |

    If someone says “yes, you can have sex with me” or even if someone begs you for sex all night, and then promptly passes out drunk, you’re still a rapist if you fuck them.

    I just want to say that I totally agree. Having sex with someone who is unconscious is rape, no question. Even if they begged for it all night, that would still imply that they actually wanted to experience it – not have it done to them while they sleep.

  23. Mer
    Mer April 12, 2006 at 10:50 am |

    If some is drunk/drugged up/tipsy you should not have sex with them. It is rape. They have not their full capabilities. Thats why you cant drink and drive. Thats why you cant say the alphabet backwards. Man or Women. Women and young people get drunk faster. They become unconsious drunk first. This is not an excuse to hurt them.

    It should be taught to everyone it is not acceptable. It would also decrease the numbers of two drunk people having sex without protection.

    Women should be able to walk anywhere anytime without risk. So should gay men, boys and transexuals (who feature highly in the male rape cases). None of them are asking for it.

    It is a human instict as a man to say well all the blame should not be on men. ‘because I am a man and would not do that’ thinking. Ignore that instinct. The figures speak for themselves, most rapist are men. Most men who are raped are raped by men.
    Do not excuse it because you are uncomfortable with that fact. It allows them to use those excuses. You dont want that.

    No matter how drunk someone is, they should not be raped, touched, whatever. A drunk boy or man is not asking for it. A drunk girl or woman is not asking for it.

    And its worth everyones time reading the storys of the victims because it educates you on how common it is, especial if you add the child abuse victims. So many people are victims of sex crimes. So many people get away with hurting those people and commit another crime. Its sickening.

  24. Glaivester
    Glaivester April 13, 2006 at 6:52 am |

    Here I think is the concern:

    If the woman is drunk and the man is sober, then he ought to know that she cannot give consent and should not have sex with her. It would be rape.

    If the man is drunk and has sex with a woman who says “no” or in other ways indicates that she does not consent, or if he uses violence to get her compliance, it is rape and his drunkeness does not excuse it.

    But what if a man and a woman get equally drunk and then have sex, with both agreeing to have sex, but with both too drunk to give consent. Is it fair in that case to say that hte man raped the woman? Wouldn’t it be equally fair to say the woman raped the man in such a situation?

    In any case, I think that getting drunk is a foolish thing for either sex to do. Not only does it involve loss of control over a situation, but also it may decrease one’s inhibitions toward aggressive behavior. (Put another way, a man ought to be concerned as to whether getting drunk would make him more likely to rape).

  25. Tuomas
    Tuomas April 13, 2006 at 9:52 am |

    Glaivester makes good points. I think drunk consent is entirely possible, but of course, not passed-out consent (absence of no does not equal yes, seems elementary, probably everyone agrees here).

    In any case, I think that getting drunk is a foolish thing for either sex to do. Not only does it involve loss of control over a situation, but also it may decrease one’s inhibitions toward aggressive behavior.

    One point is also that since getting drunk is essentially selfish behaviour (and thus draws selfish, narcistic people), the changes of encountering a rapist that way increase (as they are basically the epitome of selfish narcistics). Of course, rapists are the sole guilty ones there if rape does occur (and certainly rape does happen in other situations). But that’s just the blame game.

    If one gets drunk (man or woman), it is best to be done in good, trustworthy company, with someone who will have your back and see that you are neither victimized (perhaps more of a concern for women) nor victimize (perhaps more of a concern for men).

  26. Erika
    Erika April 14, 2006 at 1:17 am |

    It seems to me that the writer of the original piece is describing a scenario where a drunk girl is raped by a drunk guy. Since she’s drunk, she has a harder time fighting off the rapist and she may have exercised bad judgment that got her in that position. (For example, she trusted a guy who she would have otherwise avoided if she had been sober.) In that situation, rape has definitely been committed. No matter how drunk a woman is, if she says no, then it’s rape. It also doesn’t matter if the perpetrator is drunk. Some defense attorneys have tried to use the influence of drugs or alcohol to get violent offenders acquitted. Normally, those arguments don’t work. Unless the drugs turned the perpetrator into a raving lunatic, the assumption is usually that he or she still should have known better. Alcohol makes people do stupid things, but it’s not an excuse for violent behavior.

    My objection to the original argument is that women should be able to feel as safe as men at all times. We should be able to go out, have fun, and get drunk, and not have to worry about getting raped.

    I wish more governments would educate men about their responsibilities. In fact, I would like to see all sex ed classes teach boys and girls about the definition of sexual assault, the consequences of committing it, and what they should do if they’re a victim of it. Of course, the wingnuts would go crazy if the government tried to do this. They would claim that we’re demonizing all boys as potential rapists, because God forbid that we try to encourage boys to become responsible, compassionate men.

  27. Tuomas
    Tuomas April 14, 2006 at 1:38 am |

    Erika:

    I agree with you. That is where most of the energy on solving the problem should go. I think the number of men who rape commit rape could probably be reduced with education about sexual assault (with main focus on teaching boys/men),and rapists should be locked up and thus kept from raping.

    I hope a distinction can be made between victim-blaming (you got drunk, so it’s partly your fault to “get” raped [notice the passive voice]) and looking at the world in realistic way (realizing that getting drunk just isn’t a good idea for anyone, for various reasons, and realizing that bad people exist, even when they shouldn’t).

  28. W. Kiernan
    W. Kiernan April 14, 2006 at 5:26 pm |

    Regarding Gabriel’s hypothetical situation: a guy – well, I can’t speak for all guys but I can speak for myself – I would get too drunk to fuck at all a long time before I got too drunk to give consent.

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