Rape is a controversial issue, and the definition of “rape” is anything but clear. A reasonable definition for rape necessitates the use of force and/or lack of consent. After all, cajoling someone or playing on their weaknesses to convince them to take some sort of action shouldn’t be criminal, assuming it doesn’t involve injuring any non-consenting third parties.
For example, if a friend purposely drives by an In-N-Out and successfully induces you to break your diet and eat a Double Double, you were not physically violated into eating a burger against your consent. If your buddy convinces you to strip naked and go swim in the ocean against your better judgment, you have not been “forced” to go skinny dipping. If your pal sweet talks you into dropping them off at an airport two hours away against your preference, you have not been “forced” to take them to the airport.
This is because none of these scenarios involved aggression or coercion justifying punishment, and the result does not change if one or both parties were drunk when coming to these decisions. Maybe your friend has taken advantage of your drunken state to talk you into running around naked, eat burgers, or take her to a distant airport the next morning, but it isn’t criminal, because adults are responsible for their actions, even when drunk.
For some, this may seem like common sense; yet, common sense is not always so common. A Slate article recently reported a story wherein a college woman was drunk, but was walking, talking, on multiple occasions fended off friends who attempted to take her home, and told people she was OK three times . After having sex with an equally, if not more inebriated fellow student, she reported him for sexual misconduct. The slate article goes on to explain that universities are “struggling to determine” whether a situation of this type is sexual assault, which frankly, is absurd. Though all outward appearances, including text message evidence, was consistent with consent, the man was expelled from college.
This is not an isolated sentiment. I attended a freshman orientation program at UCLA in the fall of 2002 that featured a sexual assault presentation embodying a similar philosophy. A speaker stood in front of thousands of impressionable freshman in the incoming class and announced that sex with a drunk woman under any circumstances constituted rape. This appalled me and made me want to vomit in my mouth. I had never been drunk because I was a big nerd in high school, but the idea men were deemed intelligent enough to make decisions when drunk but women were not was just about the most sexist thing I’d heard in quite a while.
The speaker then invited feedback from the audience, at which time, a young man stood up and said, “I 100 percent agree because women are all wonderful princesses and should be treated as such.” At this point, I wanted to vomit not only a little in my mouth; I wanted to spew projectile barf all over this douchebag, the speaker, and humanity. If I had some more balls (ovaries?) at that age, I would have booed or staged a walk-out.
A person does not lose the capacity for volition or consent by being drunk per se, because impaired judgment (caused by drinking or otherwise) in and of itself is not something that should absolve people of personal responsibility. Of course, if a person is unconscious, he/she is physically incapable of any intent or consent, but otherwise, being drunk in and of itself should not negate volition or consent. Accordingly, when an intoxicated individual commits assault (or any other crime) it is no defense to claim he/she was drunk, and therefore not responsible for their actions. On the other hand, if a unconscious person rolls off a bed and hits someone, there clearly is no intent or volition.
Sex and rape are sensitive subjects, but countless other examples indicate impaired judgment does not and should not negate volition or consent. Stupidity impairs judgment, but unless the victim is literally mentally disabled (or is a child!) it is not a crime to have sex with dumb people. Stress and sleep deprivation impair judgment, but people cannot escape the responsibility of valid contracts by claiming they had a bad day/didn’t get enough sleep and therefore did not truly consent to the terms. Money impairs judgment, but it wouldn’t seem fair to allow someone to claim rape after the fact in such a fashion – “I was impressed with her wealth, which impaired my judgment. If I hadn’t been swayed by money, I wouldn’t have had sex with her, so I was raped.”
People also don’t get out of contracts by claiming drunkenness. Very relevantly, Lucy v. Zehmer was a case wherein a bunch of drunk people were having a grand old time, and one of the drunk people, Zehmer, jotted down on a restaurant receipt, “We hereby agree to sell to W. O. Lucy the Ferguson Farm complete for $50,000.00…” Zehmer later tried to claim he was drunk and didn’t mean it, but the court upheld the contract, finding that the outward appearances pointed to a valid contract, even if Zehmer had imbibed quite a bit of alcohol.
Like with drunkenness, on the extreme end of the spectrum, there may indeed be a complete lack of consent if someone was so anxious as to be mentally ill and incapable of consent, or so tired they were actually unconscious. But until it approaches that point, the mere fact of impaired judgment in and of itself does not negate consent if outward appearances, or objective factors, indicate there was consent.
This is not to say there aren’t areas of gray, as intoxication and unconsciousness span a wide spectrum, and many situations will require a case-by-case determination. However, if someone gets drunk and is convinced into having sex, it is not rape unless there is actually some physical force or objective lack of consent. I.e. As Lucy instructs, the inquiry is not how drunk either party is; the inquiry is whether the outward appearances indicate it was consensual. As consent is not negated by impaired judgment alone, objective factors such as aggression, violence, threats, and refusals by the victim are key to the inquiry. Admittedly, consent can be difficult to define, but instead of attempting to set parameters, people have become hung up on this false belief that drinking alcohol, which is a voluntary act undertaken by adults, somehow negates personal responsibility.
To compare – people who are born stupid cannot escape contractual obligations they have made with smarter people by claiming the smarter person “took advantage” of their lower IQ. Regardless of the intelligence differential, a person attempting to avoid contractual duties is held to the same contractual standards as the rest of society. People born stupid similarly cannot claim rape when a smarter person has sex with them (thereby “taking advantage” of their “impaired judgment”). That being the case, people should not be able to deny responsibility when they make impaired decisions after voluntarily ingesting alcohol.
The fact someone regrets it the next day doesn’t mean he or she objectively refused consent the night before. The fact he/she wouldn’t have consented if sober is also irrelevant (again, see Lucy). People do all kinds of things when drunk that they otherwise wouldn’t do – that’s kind of part of the fun (and danger) of being drunk. Many people regret the frankly horrifying binge-eating they engage in with friends after a hard night drinking, but that in no way means their friends violated them and forced food down their throat.
The use of mundane examples of eating burgers and swimming naked in the ocean was not an accident. Much of this discussion revolves around the widely accepted assumption that sex is this big fucking deal. If sex were seen as an experience similar to burger eating, skinny-dipping, or contract-making, no one would be trying to argue that getting drunk negates volition/consent, or that the end result of drunk people having sex should be a prison sentence. In fact, this discussion likely would never even exist. It is for the very reason that sex is placed on a pedestal that people have found the need to create twisted logic and nonsensical rules when it comes to sex.
The reason it is a big deal is probably because as progressive as people pretend to be, a lot of them are still clinging to antiquated, oppressive, and downright stupid notions of sexuality. Monkeys fuck. Cats and dogs fuck. Goats and donkeys fuck. Cows fuck. Llamas fuck. Bugs fucking fuck. They do it to reproduce and spread genes. But when it comes to human beings, there are all these fucking rules (pun intended), and most of all if you’re a woman.
If you’re a woman and you don’t fuck anyone at all, you’re a boring old prude. If you fuck too young or fuck too many, you’re a fucking slutty whorebag. A slutty whorebag is pretty much the worst thing a woman can be. It’s much worse than being a jerk, a dick, or an annoying person. A slut/whore is like the worst thing ever. You bring shame to your family. Other women hate you. Men fuck you but think you’re disgusting (which makes zero sense by the way – if someone is so repulsive, why in god’s name would you put your dick inside?). You’re pretty much the lowest scum to ever walk the earth, reviled, denigrated, and scorned along with murderers and rapists even though you’ve hurt no one – in fact, just the opposite – you’ve probably made plenty of people quite happy.
People who drink too much or shoot too much heroin “have a problem” and are in need of therapy, sympathy, support, and love, but god forbid you fuck too much – clearly, you are an immoral, soulless, wretch.
Wait, actually, the rules are not that simple. If you fuck a ton, but it’s all the same penis, you are totally cool. However, if there were many different penises involved, then you are a horrible, deranged human being. Well, if there were like 5 penises total, over a period of like 10 years, you are probably good to go. But if it was only 5 penises, but it involved two Eiffel Towers and a one night stand, you might still have a problem. It’s very, very, complicated.
This is not an excuse for false rape accusations, which are unforgivable. However, it does provide context to explain why people come up with absurd ideas like, “drinking alcohol negates consent” and “there is no such thing as consensual drunken sex.” It also isn’t surprising that if society beats into women the idea that only degenerate and terrible women are slutty or aggressive about sex, women who were drunk and made a poor decision might have this sort of thought process: “Wait, I did what? But I’m not a depraved, abominable person! I wouldn’t have done that normally… I must have been tricked/drugged/raped…”
Slut-shaming causes women and men to make sex a big fucking philosophical/moral deal when it need not be. We are all a bunch of human beings trying to spread our DNA and our petty genes, just like cats, dogs, goats, and fucking bugs. It’s actually quite base and puerile. This is to say nothing of the fact that assuming a man has the capacity to rape when drunk, but women have no capacity for consent when drunk is paternalistic, condescending, and downright insulting to the intelligence of women. We are sentient, adults, not babies or animals. Anyone who supports the infantilization of women through culture or law in this manner is by definition sexist.
So get over it. If you drank too much and fucked some gross dude, own it. Laugh about it the next day, chastise yourself for making a poor choice if you so wish, see a doctor, and get on with it like a man would. Write about it in your journal and make him a fictional character in one of your short stories. It’s a trivial matter in the grand scheme of things, because self-respect doesn’t come from the number of dicks that have or have not been in your vagina.
If you are a man and your sister or daughter got wasted and had sex with someone beneath her, get off your judgey, Victorian, caveman-like high horse and ask yourself whether your dick, or your soul, is so clean and perfect. If you are a woman and think sluts are everywhere around you, try not to be a mega-bitch because it’s none of your fucking business anyways. If someone you know truly is having so much sex with so many people that it’s literally a mental illness or a severe problem (learn about nymphomania symptoms here), then treat them the way you would a person with any other addiction, not like an immoral waste of life.
People get drunk and do stupid shit sometimes, and some people do stupid shit all the time when sober. That’s life, and there isn’t always a rapist involved.