My mention of this article on Twitter got a lot of pushback, so I figured I should talk about it in a space more suitable to… like, any nuance. At all.
First: “X can’t be rape because then I would be a rapist” is a colossally stupid argument. Most rapists do not self-identify as rapists! In fact, as Lisak shows, most rapists have reached levels of self-delusion in which “I just held down someone and fucked them while they said no, it’s not like a rapist” is a thought they actually have. So don’t make that argument! It sucks.
On the other hand, “X can’t be rape because then I would be a rape survivor” is a fairly coherent argument, as seen in the number of sex workers who have said something along the lines of “I’ve done sex work, and I’ve been raped, and the two are in no way comparable.”
Second: there is some really massive miscommunication happening on the subject of intoxicated sex and rape.
I feel kind of uncomfortable talking about this, because I’m straightedge. The closest I’ve come to being drunk is having a cup of a friend’s butterbeer recipe, which includes a splash of butterscotch schnapps. You literally could not find a person more unqualified to draw the line between drunk sex and rape. So if I talk about this kind of vaguely, that’s why.
At a certain point of intoxication, people become too intoxicated to meaningfully consent to sexual interaction, and then having sex with them is rape. (Of course, you can give meaningful consent ahead of time, just like you can with someone having sex with you while you’re unconscious.) This is literally what every feminist I have ever talked to believes about rape by intoxication. It is also what Rebecca Watson believes– to quote her post, “I’m going by the common definition here, of someone whose faculties are impaired, e.g., slurred speech, stumbling, etc.” The legal definition of rape, while it varies by area, also usually includes a similar kind of rape by intoxication.
I’m not saying that there aren’t people who believe that having some booze to loosen up before sex is rape, you can find people who believe any stupid thing, but they are clearly not the mainstream of feminism. Seriously, the closest I’ve come to meeting the “if you have a beer and have sex you’re a rapist!” feminist is a woman who thought that we should legally define all drunk sex to be rape because people who weren’t raped wouldn’t prosecute and rapists wouldn’t get off on a technicality by fiddling around with blood alcohol levels. You can have lots of opinions about that position (here’s mine: it’s dumb), but she clearly doesn’t believe that having a glass of wine and fucking is rape.
Now, you could make the case that there are lots of people who have sex while stupid-drunk and don’t feel raped in the morning. This is very reasonable. Personally, I think of it similarly to the way I think of someone initiating sex with someone while sleeping: there’s a chance the person will consent to it, in which case no harm no foul, but you still shouldn’t do it without clearing it with them first, because if they don’t consent you just raped them. Also there’s the concern that two severely intoxicated people could have sex and end up raping each other, which seems like a weird result? But then you need mens rea to rape someone, which you clearly don’t have if you’re that drunk, so I suppose you’d end up with two rape survivors and no rapist.
All that aside, there’s a fundamental disconnect here between the broad consensus of anti-rape-culture people, which is “sex with people too intoxicated to consent is rape,” and what a substantial contingent of people is hearing, which is “tipsy sex is rape.” I have no idea why. Are there multiple meanings of the word ‘drunk’? Is there another word anti-rape-culture people should be using that other people will understand better? (Honest questions: my straightedge self is not really up on you kids and your lingo.)
Short version: Anti-rape-culture advocates, please realize that when some people disagree with you it is because they literally do not understand what you are saying! People who think someone might be saying tipsy sex is rape, they probably aren’t! Thank you and goodnight.
“I guess I just feel that it has nothing to do with rape culture, and saying that its about rape culture compounds the pain of virgin shaming.”
I agree. I am a technical virgin for a lot of reasons. The way male sexuality is generally discussed (rapey) is one of them. I guess one could make a point out of redefining rape culture in a way that includes virgin shaming, but that, to me, sounds like trying to redefine the term table to include chairs.
There are degrees of drunk, definitely. They also probably vary by person and number and type of drinks.
In my experience of having been a whopping 4 times more than minimally tipsy, it’s maybe 80% coordination impairment (awful — like those nightmares when you want to run but your legs are all gooey and try to talk but your mouth is full and you talk slurred), and 20% mental slowing down, like being really sleepy and having to concentrate to stay on topic: I realise this, it annoys the hell out of me to have so little control over my body, but I know perfectly well what I’m doing, and can be very clear about what I want, if necessary.
On the other hand, I’ve also seen enough drunk friends with way worse mental effects, including having no idea what’s happening, making extremely stupid decisions, rolling around in their own puddle of sick for fun, trying to follow other people’s dangerous suggestions, and being generally unable to express disagreement, let alone follow through on it.
So yes, there is a reason why people can understand vastly different things when they hear “drunk”: It’s not clear-cut.
I agree with Ysanne in that there are definitely degrees of drunk. I’ve rarely ever gotten drunk, and even then I’ve never gotten all that drunk. I don’t like feeling like I’ve lost too much control over my decision making abilities…so I tend to get to that point where I’m being a little too silly and a little too unconcerned about consequences and then I stop drinking. What that means is that while I’m sobering up at the during the second half of a night out, my friends are all at their drunkest.
What I’ve noticed is this: we have a culture that thinks it is totally acceptable to try to convince a drunk person to do something they might not want to do. It’s apparently funny to watch drunken karaoke while knowing the person would have never sung in front of people if sober. I can’t tell you how many times I’ve seen someone try to get someone who is totally plastered to have just one more drink. And we do it to ourselves too. I can’t tell you how many times I’ve heard, “I haven’t had enough drinks to…” in my life (and only sometimes as a joke).
So I think we’ve got two things going on here when it comes to drunk sex which is rape. The first is rape culture…specifically the idea that you always have to convince and/or trick a woman into have sex with a man. The second, though, is that it is okay to try to convince/trick a drunk person into doing something they might not otherwise do.
Thanks Heather, I just realised something…
This here:
“being a little too silly and a little too unconcerned about consequences”,
i.e. the possibility of a drunk person actively and enthusiastically deciding to do things that they would not have done while sober, and in hindsight wish they’d rather not have done,
is routinely and often intentionally mixed up with
“to try to convince/trick a drunk person into doing something they might not otherwise do”,
i.e. taking advantage of the drunk person’s impaired judgement to manipulate them into doing something that one knows they definitely wouldn’t do when sober.
It’s the difference between not protecting someone from their own potentially cringe-worthy choices, and choosing to knowingly push them into a certainly bad situation.
Very true, Ysanne. And the excuse I’ve heard by people when they say they weren’t aware they were doing the latter (pushing someone into a bad decision) as opposed to the former (simply not stopping a drunk person from doing something cringe-worthy), is that they were drunk too. i.e. “I was too drunk to know that I was taking advantage of her drunk state when I convinced her to have sex with me.” Which, that’s a horrible excuse for many reasons…but the fact that it is considered a valid excuse by so many I think says volumes about the value we place on having sex (as opposed to the value we place having sex with a person).
By that I mean, sex is a goal and the person is just a means by which to achieve it. And that’s part of what plays in to the whole “I was so drunk I didn’t realize s/he didn’t want to have sex with me,” defence. Because really it should read, “I was so drunk I wasn’t paying attention to whether s/he wanted to have sex with me, because I wanted sex, not her/him.”
I think that three factors enter into it. How drunk is the victim, who initiated the sex and what is the relationship with the other person.
Scenario 1: Two very drunk individuals have sex.
Version 1: They barely know each other and one talked the other into it while the other one was barely coherent.
Version 2: They’ve been married for 30 years, its their anniversery and they have had a tradition of making love on their anniversery every year.
Senario 2: Very drunk woman has sex with sober man.
Version 1: They are strangers and man talked woman into it.
Version 2: Woman is in her 40′s and is the man’s boss. Man is 18. Woman demands sex from man. He refuses several times but finally agrees when she threatens to fire him if he continues to refuse.
These situations both involve very drunk people having sex but the details determine if it is rape or not.
I don’t believe that it is automatically rape if one party is drunk and the other party is sober. However it is rarely a good idea for a sober person to have sex with an extremely drunk person, especially if they don’t know each other.
One problem I see with the refusal to answer “borderline case” questions (which are indeed mostly being asked insincerely) is that such refusal leaves an implication that there are borderline cases. Which is problematic because this contradicts the now-predominant feminist view that there’s no such thing as “gray” rape. How can that be resolved?
I for one think that the “gray rape” concept is useful because in its absence, rape culture will classify such events as “not rape at all” rather than “definitely rape”. It is definitely rape, but if we act like all situations are unambiguous on the surface (not just at their core), then people will come to the wrong answer (which will be the answer they wanted all along) in the ambiguous situations. Plus, the last message I want men to recieve is “Rape is black-and-white and therefore obvious, so if it doesn’t strike you as obviously rape, then it’s not rape.”
I think rape is both black-and-white and not always obvious, in a similar sense as the way that someone with a 50% chance of being a murderer (from an outsider’s perspective) is not a half-murderer.
I believe that there are grey areas. They are not the areas typically used by apologists. Issues such as what clothes the victim wore or how they acted earlier are not relevant if the party later changes his/her mind and lets the other person know.
The grey areas, in my opinion, are ones where one party gave clear and unambiguious consent at one point. Then later withdrew the consent but didn’t effectively tell the other party. The classic example is two drunk people make out for an extended period of time. Both tell each other repeatedly that they want to have sex. At the last minute, one changes her/his mind but is so drunk that they are unable to speak coherently and the other party is too drunk to figure it out.
People cannot read minds and some people are really bad at reading subtle signals. When the yes is loud, clear and unambiguous and the later no is very subtle, quiet and ambigious, signals can be mixed.
The problem with this is that in the vast majority of rape cases like this both the yes and no are loud, clear and unambigious but the rapist pretends not to hear the no. The rapist uses the rare exception as cover to get away with their crime.
I agree with you there. I remember being shocked when I first read the infamous Cosmo article that popularized the term. I had been expecting a story like “I got drunk, and only ever said yes to him, and now I feel like I was raped”, and instead the story was one of unambiguous rape. So I definitely see one reasin people bristle at the term “gray rape”.
But the borderline situations still need to be resolved, if only to shut people up. The two big ones are “Is all drunk sex (that lacked explicit pre-sober consent) rape?” (I am prepared to say: yes, just like all inebriated driving is drunk driving) and “If a man is too drunk to consent, was he ipso facto raped?” (this one is more tricky). Usually these are asked insincerely, meant as reductio ad absurdum arguments that the whole idea is crazy, not geniune issues. But they should be answered sincerely anyway.
The only answers I’ve ever seen are legal-based, which is odd because the law in this area is often sonething that needs to be fixed! For example, people might say “It doesn’t matter if the man in a mutually-consensual-except-for-alcohol situation was ‘technically raped’ because he’s not going to press charges.” This feels unsatisfactory and also at odds with the fact that a rape victim can choose not to press charges but still remain a rape victim. So I want a bumper-sticker answer to all those MRAs and company but don’t have a good one yet.
@scenario:
Scenario 1: Versions 1 and 2: Both rape. Being married or “talking someone into it” don’t have anything to do with rape. Neither ethically nor legally. (Other than talking someone into committing rape is a crime.)Depending on the details of the sex either one or both is a rapist. In Version 1, the guy is definitely guilty, and the woman may be too.
Scenario 2: Version 1: Guy is guilty.
Scenario 2: Version 2: Remember that you are not required to fight sex. Period. You do not need to stop a drunk person from having sex with you.
Anyway, the woman in this case should be guilty of blackmail and rape, and the guy may possibly be guilty as well. The law tends to frown on the excuse “I had to do it because of my job”. Or he might not be not be guilty if he did something like just lie there.
>> “If a man is too drunk to consent, was he ipso
>> facto raped?” (this one is more tricky).
Could you expand on this a little more?
To thefish:
Does being drunk take away a persons ability to consent? If so at what point?
In my scenario one part two both parties are very drunk and have indicated openly, clearly and often that they intend and want to have sex with each other up to and during the sex act. (The communication is indicated by the fact that they have been married for many years, they have made love on their anniversary every year and today is their anniversary. Maybe I have a good marriage but I was thinking about a candle lit dinner etc.)
In scenario one part 1 both parties are very drunk and they have not had any prior discussion, she is uncertain and he talkes her into it when she is in a situation where she may or may not be able to understand him. Talking a reluctant person into doing something when they are extremely drunk is coersion.
I cannot look at the scenario 1 part 2 situation as rape because both parties have had clear commmunication every step of the way and there is no coersion on either party.
In Scenario 2 part 1 it is clearly rape because there is coersion involved.
Scenario 2 part 2
If you believe that all drunk sex is rape than he is a rapist even though there is a power imbalance where she has the experience and advantage and he is being coerced into sex. Telling someone that you will fire them if they don’t have sex with you is coersion.
You don’t have to fight to prevent rape, but shouldn’t someone have to do something to indicate that they changed their minds if they had enthusiastically said a very clear yes 30 seconds before? Passing out is a clear no but if you are still conscious?
Making all drunk sex rape would end up putting a significant percentage of the population in jail. Comparing drunk driving to rape is not strictly valid because driving takes a lot more concentration and reflexes than most activity. It is perfectly legal to do most other activities while intoxicted until it gets to the point when you are either annoying someone or are a danger to yourself.
Another scenario, Long term couple. Man is very drunk. Woman is sober. Man asks woman for sex repeatedly. Woman finally says yes. He is very drunk, she is sober, did she rape him? That’s why I consider who initiated the sex an important part of the consent process.
Why should it make any difference if it is the man or the women who is drunk? It doesn’t make any sense to me to say it’s ok for a woman to take advantage of an extremely drunk man sexually but it’s rape if a man takes advantage of an extremely drunk woman. It’s rape either way.
One thing that I have tried to put in every scenario is that I don’t believe that drunken sex is rape if there is clear agreement and communication between the parties every step of the process. If someone is trying to talk someone into sex when they are very drunk and hear some vague sort of sound that they interpret as yes, that is not consent and it is not a grey area, it is rape.
I agree with one of the previous commenters, the reason for the confusion is that when most people think of legal standards for being drunk, they think of laws related to drunk driving. In my jurisdiction, two glasses of wine would probably be enough to subject an average sized woman to administrative sanction (three glasses would make it criminal). I’m not aware of any sexually active person who drinks who would think that someone in that ballpark of intoxication would not be able to give consent. It’s also worth noting that many people choose to drink for the purpose of lowering their inhibitions and therefore making decisions that they might have been too shy to make without drinking. That being said, I think there is a pretty broad consensus among responsible sexually active drinkers about where the line actually is. If the person understands the decision that they’re making, can coherently communicate their thoughts verbally, and has full control of themselves physically, you are probably good to go.
Things I have trouble reconciling « Valprehension
These are all sound explanations for why some people react so defensively in discussions about drunk sex versus rape. May I suggest one more?
I don’t think everyone who takes issue with the argument that having sex with an incoherently drunk person = rape are simply misinterpreting it as “tipsy sex is rape, full stop.” I have had sex tipsy, and I have had sex DRUNK (not vomiting or losing consciousness drunk, but “uncoordinated and would definitely fail a Breathalyzer” drunk), and in each instance I have given consent freely and without coercion. I don’t consider any of the men I have had sex with while drunk to be rapists.
And yet when I read the many well-reasoned, intelligent posts in the feminist blogosphere about how tipsy sex is acceptable but drunk sex is thin ice at best and rape at worst, I am uncomfortable. I am uncomfortable because I wonder if there’s something objectively wrong with my experiences that I’m overlooking, and then the anxiety-disordered part of my brain pipes up with “I _felt_ like I was consenting and I _felt_ like my consent was meaningful, but what if I was wrong?” I suspect I’m not the only person who has these thoughts, and I’m betting that’s the source of a lot of the defensiveness that crops up in these discussions: people like me recollecting their own experiences and wondering, basically “Could I have been raped without knowing it?” (The sometimes overgeneralized indictments of ALL intoxicated sex don’t help matters either.)
@JimR: In Sweden, where I live, you can’t legally drive after ONE beer. I think Figleaf is a reasonable person, so when he says you’re too drunk to consent when you’re too drunk to drive, I guess that where he lives you can drink quite a lot and still drive afterwards? I don’t know where I draw the line exactly, but certainly not after a single beer.
I’m curious how you reconcile this with your later discussion of “dudes who are straight but sometimes have sex with dudes when drunk” as being possibly queer instead of just rape victims.
…because obviously they were not too intoxicated to consent.
The Link Between Virginity Shaming and "Male Entitlement" to Sex | Bad Men Project
This concerns me so much. When I was a freshman in college, I went to a small gathering of 10 or so people with who I considered my best friend, at the apartment of her boyfriend. After taking 6 shots, which I’ve handled before, my night went dark. One minute I was at the table, having fun, the next I woke up on the bedroom floor, my bra pushed up to my neck, various articles of clothing missing. I stumbled to the bathroom, pulled down my pants, and saw dried blood. I was a virgin, and before I’d blacked out, sex had been nowhere on my mind. I wasn’t on my period, so I made the connection. I woke up my friend and
demanded that she tell me what happened. Apparently I’d been so drunk the night before that I’d been being extremely sexual, saying that I wanted to have sex. I’d been so drunk that I called my best friend (a girl) a man and asked her to have sex with me. I’d also been hitting my head, falling over, and calling people by different names. From what she told me, it was very clear that I was completely obliterated. I’d apparently started making out with one guy in the bedroom, but he ended up leaving because I was so drunk that I was scaring him. That is when his friend went in. Two minutes later her ran out, apologizing and saying that I was so tight. My friend said she went in and found me pantsless, so drunk that I’d been trying to stumble out of the bedroom half-naked. I was so drunk that she had to help me get dressed. After that, she put me to bed, where I promptly passed out. The two guys, meanwhile, had booked it of there. They apparently apologized to my passed out body and left.
I decided to press charges. That second man knew that I was too drunk, and he used my drunk state to his advantage. He went into that bedroom because he knew in my drunken state I couldn’t gauge the extent of the situation.
This IS rape by intoxication. I don’t care what anyone says. If a girl is so inebriated that she can’t even tell who people are, it is NOT okay to have sex with them, even if they are “consenting.” It’s disgusting and pathetic.
I woke up that morning, scared out of my mind, head hurting, bruises all over my body from falling over. This is NOT okay. If a girl is clearly obliterated, you just don’t have sex with her. After filing charges, and hearing more of the story, I learned that people were debating whether or not I should be told in the morning. People KNEW I was blacked out. I also learned that my “best friend” had given the 2nd man permission to have sex with me. NOTHING about any of this is okay. It is wrong, disgusting, and should be illegal. Unfortunately, since I “consented” the police officer investigating my case said nothing could be done. He also told me that it was all my fault, and that I was blaming everyone other than myself for the events of that night.
I’m going to blame myself for the rest of my life. I’m going to blame myself FOR DRINKING TOO MUCH. While at that table, sex was not on my mind. While at that table, I was in control. I guess I felt too comfortable, because I didn’t even consider the possibility of blacking out. I consented to getting drunk. I DID NOT consent to sex. I was a virgin, intent on waiting, and for people to have used my obliterated state to their gratification? Well, it is disgusting.