When “Drunk Sex” Clearly IS Rape, and More Thoughts on Alcohol and Consent

Because we focus on college campuses, the issue of alcohol and sexual assault comes up constantly, and often by guys who are on the defensive. It’s actually a really complicated piece of the discourse around sexual assault that we don’t talk about nearly enough, this anger over whether or not “drunk sex” is rape—at its worst, the defensive argument is the idea that women who get drunk and have sex often “cry rape” afterward because they regret what happened. On the other side of the spectrum is what I think is a genuine confusion about how drunk is too drunk, that makes some guys really scared, and ultimately that fear can lead to really hostile defensiveness. Somewhere in the middle is a mixture of carelessness, entitlement, and lack of communication (based in a lot of fucked up history and the fact that we don’t talk about consent and sex openly with young people) that enables rape because one person never even really stopped to think about what their partner even wants, not to mention how intoxicated they actually are.

The bad news is, there isn’t one test to tell when someone is too intoxicated to consent to sex. (Well, maybe there is—one could make an argument about blood alcohol content perhaps, but college students don’t carry breathalyzers last time I checked so let’s move along). And so when we talk about alcohol and consent, it’s a conversation about open communication with your partner if they’ve been drinking—checking in with them, making sure they are enthusiastically, affirmatively consenting to whatever you’re doing together. Clearly people are sometimes going to get drunk and have sex. And the presence of alcohol in someone’s bloodstream does not automatically make it rape. But there’s a spectrum of intoxication. If someone is physically impaired by their drinking (or drug use), you can tell. They are getting sick, their body is limp, they’re not able to communicate clearly with you. It’s a common sense situation. If it’s less obvious, you know they have been drinking but you’re not sure how much and they seem OK, that’s where communication is key, and honestly—if it’s unclear how drunk your partner is and you feel conflicted, then maybe just play it safe and don’t do it. Instincts are there for a reason. You’ll have another chance to have sex, but sexual assault is permanent. [As a side note, I love this piece at Scarleteen about how men know if someone is giving consent or not, and I highly recommend it.]

That’s important on its own. But it’s also a really long, roundabout way of telling you about this (triggering!) case from Lincoln University. It’s a really disturbing story about the reported gang-rape of a female student in 2006. Three of her alleged rapists are about to go on trial and are pleading not guilty. A fourth was just found guilty—he was tried separately because he had “he gave a statement incriminating himself in the incident.” Here is what he says happened:

Forbes said he had gone to the room later after hearing a “commotion” there and observed about 10 male students standing around the bed, where the victim was lying naked. He said he saw Jefferson and McDonald having sex with her and that during that time she never moved, spoke, or woke up. She was “passed out,” he said…

In his trial, Forbes’ defense attorney, Assistant Public Defender James McMullen, told the jury that his client had started to have sex with the woman while she was asleep, but that he had stopped when his conscience took over.

Should you commend him for stopping and leaving? The jury found him guilty, and rightfully so I think, despite his attorney’s argument that the fact that he realized what he was doing was wrong and left makes him not guilty. But sadly, I suppose you have to at least aknowledge his burst of conscience (despite the fact that the damage was done as soon as he began raping this unconscious woman and that he doesn’t seem to have called the police on the rest of them or even told them to stop) when you consider the other guys who were responsible for the rape. One of them, who I remind you is pleading not guilty, straight-up admits to rape and just doesn’t seem to think it’s rape.

When police interviewed him, Goodwin acknowledged he had sex with the woman that night in Room 233 of the dorm. He said that when he left her, the woman was “intoxicated and incoherent.”

So you have a drunk and “incoherent” woman. You have one guy who realizes that having sex with her is actually raping her, and you have at least three more who are at least not going to admit it was rape, and may truly believe it actually wasn’t. But incoherent is a pretty clear line, folks. How you have the audacity to claim that you had consexual sex with an incoherent woman is sort of beyond me. When we get to the point where someone can look at an incoherent person and think it’s OK to have sex with them (i.e., rape them) we’re in serious trouble.

I guess the point I’m trying to make here, is that there is so much defensiveness about alcohol and consent, as though it’s a really really complicated thing. And ya know, I think that for people who are aren’t raised to think about sex as a shared experience in which two people are actively, positively participating, it can actually seem that complicated. But the reality is that it doesn’t have to be. Having sex with an incapacitated person should be widely understand as rape. Two drunk people having sex should be aware enough of the other person to have a sense of what is or isn’t consent because they’ve been raised to respect other people, and it’s second nature to them to check and make sure their partner is involved. I understand this is reductive; that it’s real nice to think about this sexual utopia where things are simple, but perhaps not a realistic picture of how things are now so what’s the point. But I think that we overcomplicate consent; people say that defining consent is making something natural more complicated than it needs to be, but really isn’t something only complicated when it’s unclear? Wouldn’t the actions themselves be less complicated if we had the complicated conversations beforehand? I dunno. I long for the day when this can be that simple.

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