Alcohol and Consent

This article from the Boise State student newspaper is an excellent illustration of why we anti-sexual violence activists need to be really, really clear about our definitions of sexual violence.

Here we go:

According to BSU’s policy on consent for sexual activity, consent cannot be given by someone who is intoxicated. While I understand this, I do not agree with it. It is a dangerous and vague definition of a very serious crime. Frankly, it scares me. Booze and sex, while once a favored college past time, are now a breeding ground for disaster.

How many college students participate in sexual activity while they are intoxicated? According to factsontap.org, more than 70 percent of college students admit to having sex under the influence of alcohol. With such a high number, shouldn’t we deny the premise that 70 percent of students are raping each other? Is it still rape if both members consent while intoxicated or is this a conundrum? I understand this definition is meant to push youth away from the dangerous mix of alcohol and sex, but it doesn’t offer a realistic solution to the problem.

I’m going to say something that is not often acknowledged by anti-sexual violence activists (though it should be). You know what? He’s right.

A few beers does not make consensual sex sexual assault. It just doesn’t. And I think it’s really dangerous to have these prevention programs with the scare tactics about how you might rape someone “by accident” because if they have had a drink it’s sexual assault. That kind of bullshit makes the prevention program seem less realistic and credible, plays into men’s fear of false accusation and appears to give it validity, makes people believe that the prevalence of rape is overestimated because stats are counting all sex under the influence as rape (they aren’t), gives people the idea that rape is easy to commit by accident (and that maybe perpetrators shouldn’t be punished too harshly), and, most importantly, pretty much completely ignores the concept of enthusiastic consent (I could speculate about why this is, and honestly, I think it’s generally about discomfort with sexuality).

Rape is not gray. How many times must I say this? How many times must I say this to people who are supposed to be professionals in the field of sexual assault prevention?

Basing a prevention program on the premise that men are going to try to have sex by any means necessary, and are willing to engage in any behavior short of rape to do so, is fucked up. And that’s what these programs do. They assume that since men are going to take it right to the legal line when they have sex with people, we should tell them that the line is at a single beer, just to be safe.

That just isn’t true. The line is wherever an individual’s line is, and although it is specific to each situation, it’s not particularly gray. If someone is too wasted to know what’s up or to resist effectively, it’s rape. It’s not that complicated. It’s not gray. The only people who think it’s gray are creepy creepy people who are trying to take it to the legal line. Gross.

We here at SAFER often wonder why the heck would you want to have sex with someone who is falling all over the place and isn’t altogether clear on the situation. You have to be really messed up to think this is okay behavior, and I just don’t know what you get out of it. But that is where the cultural problem really lies. People don’t think that women are supposed to enjoy sex, and be enthusiastic about it when it occurs. And they expect men to lack the most basic empathy for other human beings when it comes to sexuality.

That is what we need to address if we’re going to get anywhere with sexual assault prevention. These scare tactics do not serve our purposes.

(Little Update: Cheers to Cara at The Curvature for pointing out that the original article linked to is a piece of apologist/denialist/generally lame-assist crap. I didn’t really make that clear in the original post, but it’s true and important to mention. I was commenting on the fact that we unfortunately sometimes give lame-assists ammunition and play into the very same gendered expectations that they do, but in no way was condoning the rest of his statements. Bottom line: Dude happened to make a reasonable point somewhere in there, but the rest is baloney.)

    19 thoughts on “Alcohol and Consent

    1. Pingback: Diluting the Message : The Curvature

    2. What if HE is also falling around drunk and not exactly clear on the situation? Why is it assumed that the guy is sober enough to know that the woman is too drunk to know what’s going on?

      Please, please, PLEASE don’t misread that – I agree with everything you say and I am not making apologies or excuses or any of that. I am sincerely confused about how if one person is too drunk to be give/withhold consent, the other party is supposed to be sober enough to recognize this. How do we draw these lines?

    3. The legal rule is (at least in every state I’m aware of) – everyone is responsible for what they freely and willingly do while under the influence of drugs knowingly taken. That means that if you get drunk and choose to drive, you’re legally responsible for the outcome. Same thing if you get belligerent and swing at someone, or if you rape someone.

      That is not the same as saying you’re responsible for everything that happens to you when you’re drunk. If you get drunk and enthusiastically consent to sex, you consented. If you get drunk and aren’t able to consent (passed out, don’t understand what’s happening to you, etc.), that’s rape. It’s pretty simple.

      If you really can’t tell if a person understands that you’re trying to have sex with them – don’t have sex until you can read social cues MUCH better.

    4. Anonymous,

      I have decided to approve your comment because it (barely) manages to stay this side of the rape apologist line. However, I must point out two major problems with your logic:

      1) The situation you describe is, in most cases, a physical impossibility (though occasionally men are raped by women). Men who are too drunk to consent are generally too drunk to perform sexually.

      2) If someone drives drunk, or murders someone while drunk, or commits any crime while drunk, we hold them legally responsible. You can crusade against that if you like, but I think it’s pretty fair.

      Most of the batterers and rapists I have spoken to use alcohol as a way of minimizing and rationalizing their behavior. Sentiments like yours help abusers in the process of convincing themselves that they have done nothing wrong.

      Finally, all of the rapes by alcohol intoxication I have heard described have been cases where the woman was too intoxicated to stay awake. The men in these situations were (obviously) considerably less intoxicated.

      It seems to me that you have an exaggerated fear of dishonesty in women, and that your approach to sex (looking for how far you can go without crossing the line) could be more compassionate.

    5. [These anti-rape programs] assume that since men are going to take it right to the legal line when they have sex with people, we should tell them that the line is at a single beer, just to be safe.

      I don’t think that’s what they do. I think the analysis comes from a different perspective, and that seeing things in that way makes this “zero-tolerance” stance much clearer and more reasonable.

      The issue is not what rules would be safest in keeping women from being assaulted – that is, a case of simply declaring all sex after drinking as non-consensual by definition in order to keep women from being taken advantage of. The issue instead is the application of a general understanding of what real consent is – an understanding that already has legal application in other areas – to the issue of consent for sex.

      In healthcare and law, “informed consent” means the authentic approval of a given choice made with full information, and free of distortion by coercion, undue inticement, helplessness, or intoxication. A consent for a medical procedure given while under the influence of drugs or anaesthesia is not valid; a criminal confession made while intoxicated is also not valid. The idea is that a decision made while intoxicated may not represent your true preferences, or may easily be influenced by external pressures. We cannot be sure such consent is freely given, so we simply may not accept such consents even when they are given. A doctor may not operate on a patient who gives consent while intoxicated or medicated (there are alternative procedures for emergency situations), and courts may not accept confessions signed while drunk or on drugs.

      Under this doctrine, it is simply impossible to give a valid consent to any act that requires consent, while you are intoxicated – even if it is something you would have consented to while sober. Whether or not you would have consented otherwise, an intoxicated consent is not freely chosen. The blanket prohibition on unfree consent protects the intoxicated party from abuse – justified because “she said it was OK” – committed while they can’t make a decision to protect themselves. It also prohibits acts that might have been acceptable to the intoxicated party, because we cannot know, while they are intoxicated, what their sober preferences would be; that’s the price of demaning authentic consent in each and every case.

      It’s obvious this doctrine applies directly to the question of consent for sex, as much as to consent for medical treatment or legal decisionmaking. It has always seemed to me that taking informed consent for sex seriously requires precisely such a policy, and I think it’s a good idea in this case. It’s not a question of setting policy too-stringently simply to play it safe; it’s a question of what actual “consent” really means.

      harlemjd: It’s not the case that “everyone is responsible for what they freely and willingly do while under the influence of drugs knowingly taken”. I’ve given some counterexamples above. The issue in this case is a proposed policy establishing that consent for sex be placed in the same category as consent for surgery or for waiving one’s legal rights – which seems reasonable.

    6. harlemjd: “The legal rule is (at least in every state I’m aware of) – everyone is responsible for what they freely and willingly do while under the influence of drugs knowingly taken”.

      Yes…you are responsible if you decide to, say, get into a fight, drive, or dance on tables. Because those are things you decide to do.
      Having consensual sex is likewise a decision to engage in a certain act.
      Rape is not.
      You can’t decide to be raped, by definition. So you are not responsible. I don’t get why people come out with this “you are responsible if you get drunk and drive a car, why not if yoou get raped?!” type line because, er, you can’t control being raped. Being drunk is not an excuse for committing a crime. Being raped is not a crime (despite what some seem to think).

      I really don’t see what’s so hard about this, either…slightly buzzing after a couple of drinks is one thing, and then there is falling around, incoherent, not really knowing what’s going on…of course you have the stages of drunkenness in between, but if you even suspect your partner is too drunk to consent, DON’T HAVE SEX – at least, not without checking with them that they are really OK with it, maybe wait for them to sober up, but essentially, don’t have sex if you are unsure. No-one is going to die from not having sex!
      I mean, it sounds simplistic but you know if someone is into it or not, right? And if not, you check with them?
      This is what the author was saying about *enthusiastic* consent: if someone is drunkenly into it (and maybe appears a little *more* enthusiastic) great. If they are drunkenly *not* really aware of exactly what’s going on, that is rape.

      As for Anonymous: I have not heard of any cases where the man claimed he was too drunk to consent/ too drunk to know if the woman consented. As has been pointed out, men can’t perform if they are that drunk. (He may be able to get an erection…but not sure about being able to co-ordinate doing anything with it…of course, men *can* be sexually assaulted). With the 2 extremely drunk people, you would simply get two people, at most, falling asleep in a state of some disarray long before sex occurred if they were *both* too drunk to consent.

    7. The simplicity to which rape has been broken down here is astounding. Rape is not gray? Sexual assault and consent are messy issues that are rarely black and white. This view of sexual assault denigrates the experiences of many victims. When most assaults are committed by perpetrators known by the victim, and often by previous or current sexual partners, having the power to consent (or not) becomes difficult and confusing.

      Many of these posts refer to enthusiastic consent. Again, this assumes that all women are able to enthusiastically consent and engage in sex. (Wouldn’t that be nice!) Read Lynn M. Phillips book, Flirting with Danger: Young Women’s Reflection on Sexuality and Domination, please. From the book’s preface:

      “Although it has been politically essential to assert, simply, that ‘no means no and yes means yes,’ it is also important to explore what is not so clear in women’s experiences of their relationships and sexualities if advocacy efforts are to effectively help young women prevent and make sense of the various manifestations of sexualized aggression in their lives.”

    8. Adriel,

      Advocacy efforts cannot “help young women prevent” sexual violence, unless young women are the perpetrators of that violence. Effective prevention work must begin and end with perpetrators.

      Those doing counseling work may focus on recognizing the experience of confusion survivors often have to help survivors work through their trauma. I agree that survivors often find their experiences confusing, as could be expected with our cultural tendency to blame survivors for their own victimization, and with perpetrators’ tendency to minimize and deny their actions.

      While we need the truly angelic beings who are counselors in this world, my focus is prevention. I think that there would be a lot less sexual violence (and that survivors would be a lot less confused about their experiences) if our culture could get its act together and hold perpetrators accountable for their actions.

    9. Adriel, the very name of that book is problematic. “Flirting with danger” seems to point the finger at young women for making bad choices and hence getting raped, instead of recognising that they are victims of an act in which they had no control. It is the perpetrator who is responsible, not the victim. Otherwise, like Ashley said, you are simply perpetuating the lack of accoutability that our culture attibutes to those who commit acts of sexual violence.

    10. -ashley

      I get your point in answering Anoy, but I simply do not agree with your estimation about the difficulties of raping a drunk man. Does a man need to have an erect penis to be raped? What do you call it if somebody fingers your vagina and masturbates against your thigh? harassment?

      One thing that is seldomly discussed when we talk about rape, is “why” men rape. And one thing that is seldomly mentioned in this respect is how women treat mens bodies. This is about macho culture as much as anything else, but if a drunk woman starts touching a drunk man a a party, then he’s culturally expected to enjoy it. Doesn’t anybody think this might warp mens perspectives a bit?

      Am I the only one who imagines men to sometimes engage in sex because it’s expected of them and not because it’s what they really want?

      Rape is never gray, and rapists should never be explained away. But that should’t keep us from finding the explanations, how else can we be “preventive”?

    11. Ashley –

      I think to focus all our Prevention efforts on the male population is extremely short-sighted. Sexual Assault will only end when our entire society (all men, women, and children) has a healthy view of sexuality, is able to talk about sex, and individuals are comfortable discussing the parameters of a sexual relationship before it begins. If we teach everyone to value and respect each person…if we embrace our sexuality and incorporate it into our lives…then we may begin to see changes. Both men and women need to be allowed to discuss their wants and needs, and wishes – mental, physical and emotional.

      As far as there being a gray area – as an advocate, if someone tells me they have been raped/sexually assaulted, there is no gray area for me. But I also know that before most victims tell someone they have been raped, they go through an entire internal discussion – “Could I have done something different,” “I didn’t fight back,” “I got drunk,” “We’ve had sex before,” etc. – through which they may explore that gray area. I definitely agree with Adriel in that you can’t just say rape is black and white. I wish it were that easy.

    12. “If we teach everyone to value and respect each person…if we embrace our sexuality and incorporate it into our lives…then we may begin to see changes.” (Molly)

      When are we going to understand that as a ‘movement’ that we need to stop identifying ourselves as anti-sexual violence advocates and start being pro-healthy sex advocates? I, too, believe that when we start allowing young women and men to have healthy relationships with their bodies and each other, that they will be able to discuss sex and enthusiastically consent. (Perhaps even condoms and birth control too?) Unacceptable behavior, like alcohol-induced rape, will decrease as more men begin to see what we see and as other men and women can hold those men accountable.

      Also, why was everyone so uncomfortable with the fact that “Flirting with Danger” probably uncovers how young girls and women struggle with a culture that makes simple being a sexual being difficult? “Sexualized aggression” in women’s lives can refer to rape, but it can also refer to degrading music videos or the Madonna/whore dichotomy that also shape our experiences. As prevention advocates we need to look at the whole picture – men AND women’s struggles with sexuality. And we can’t do this by blaming men, ignoring women, and giving confusing messages to the general population.

    13. Men and women should be treated equally. If a woman can’t consent to sex while intoxicated neither can a man. We could set standards for how intoxicated, that is there being a difference between having a few beers and not being aware of what’s going on but gender equality is important. Many people talk about rape as though it is only men raping women. It doesn’t happen as often but women do rape men. Erections are involuntary, so rape in that sense is possible. A man could have an erection, and the woman could put her vagina over his penis. The man doesn’t really have to do anything voluntarily for it to happen. Besides that rape isn’t always vaginal intercourse so rape of men is also possible in that sense.

      The difference in treatment all goes back to sexism. The patriarchy conditions people to think that women are supposed to be passive and men aggressive so we get this idea that an aggressive crime like rape is only something a man would do and the idea that women aren’t ever enthusiastic about sex. These ideas are wrong.

    14. We at SAFER absolutely agree that men can be raped, and I appreciate you bringing in that reminder. We always urge all policies to respond equally to sexual assault against both men and women.

    15. When I was in college in the early 90s, I woke up in a stranger’s dorm room the morning after a semi-formal. I had no idea where I was or how I got there and had never seen the guy before that night. Terrified, disgusted, angry, nauseated, I walked back home in my semi-formal dress. My “friends” in the dorm claimed that I was totally out of it, but they were too and didn’t do anything when I got on a different bus with this guy. I never reported it because it is impossible for me to say what actually happened. I have no idea where the “line” can safely be drawn, but it would be helpful if it was a clear enough line so at the very least a 19 year old girl would be able to define what happened as not her own fault.

    16. scenario: got drunk with significant other, fought, left crying, histerical and inebriated. 155 lbs female over 12 oz vodka/tequila. guy saw me leaving and offered to walk me home. during the walk (where memory is available)guy made advances, I said “I can’t” and “no, I can’t” more than once. but still was grateful for the company and compliments. by the time i found my home, i was still falling down drunk. sex occurred.
      rape or not?

      • shell, i don’t really feel like this is a forum in which it’s appropriate for me to say “you were raped” or “you weren’t raped,” and that’s something that you may need to discuss with some loved ones or a counselor. if you need to talk to someone about what happened, you can always call the National Sexual Assault Hotline at 1.800.656.HOPE.

        i will say that in any situation, “falling down drunk” should be synonymous with “not capable of giving consent.” and being grateful for the company and compliments is never anywhere near “consenting.”

    17. I have a feeling that your opinion would change if you were personally involved in an instance like you mentioned. I was sexually assaulted while I was intoxicated. While I do take responsibility for drinking, I was too heavily intoxicated to consent to anything. Any man who would have sex with a woman who is throwing up continuously, can’t walk straight, has spotty memory, doesn’t know where she is, and can’t remember to carry her phone or wear shoes is deplorable. I was in the condition that I just described, and in May, I was raped. I can’t prosecute because the police refuse to help me. I live in a college town, and I’m a sophomore, and I can’t pursue this any further because my life will be ruined. People already blame me for what happened, and I have people who refuse to believe me. I’ve lost friends, but most importantly I’ve lost confidence and my sense of security. You try dealing with that every day of your life. I wish my college had this policy. Maybe then I wouldn’t be living an Earthly hell each day.