Actually… it’s two tales of rape, but whatever.
Like every non-rapist, I’m very anti-rape. I think defining rape is pretty easy. Rape is any non-consensual sex. I think that consent is also pretty easy to define: conscious approval. What I think is difficult to define is “conscious.”
If someone is wide awake and raped, there’s zero difficulty in defining what rape is. Even if consensual sex has already begun, to continue after either party says to stop constitutes rape. There’s no sensible debate about that.
It’s even easier to define rape in the context of the victim being drugged (either by the rapist, by a third party, or even if the victim knowingly took them) or passed out for any reason. If someone is unresponsive, not only is it illegal to have sex with them, you should probably take them to a hospital, or at the very least stay near to them (not on or in them) in case they experience a medical emergency.
But here’s the [unwanted] rub… when you drink or take drugs, there is a state of being between conscious and unconscious. I have friends who, on the sleep drug Ambien, have gotten in their car and driven someplace, then drove home, all without remembering it. One found out when they woke up in the parking lot at work in their pajamas. Another found out from home security footage. I’ve also have known people who made phone calls while on Ambien and who carried out entirely lucid sounding conversations.
I’ve known people to get drunk and pass in and out of consciousness. Well… more like in and out of belligerence. They’re dead weight one minute, then they’re telling you to “Shut the fuck up” after you haven’t said anything. A truly unpleasant state for all those around you.
It is this gray area of intoxication that is tough to deal with (commonly known as browning or graying out). Personally, I think it’s a bad idea to do anything with someone in this state of mind. The trouble you then face is… how do you know what state of mind they are in?
Again, it’s always easy when someone is literally just sprawled on the floor, but in reality there are varying degrees of intoxication. No one would say that someone who has had a few drinks can’t consent to sex. No one should say that someone who is eyes-rolled-in-the-back-of-your-head, mumbling drunk/drugged is able to consent. But what about the broad spectrum in between?
I don’t have an easy answer. I mean, I guess the easy answer is to buy a breathalyzer and set some arbitrary limit, then breathalyze every person you plan to have sex with. Maybe have them sign a consent form, as well. And while you’re at it, you should probably card them, to avoid statutory rape charges. Then, after you’ve done all of that, you can finally have sex, assuming either of you is still aroused.
So there is no easy answer.
With that, I’d like to tell two tales of rape that happened to friends of mine.
Someone I know was at a music show at a bar and she was pretty sure the next morning that she was drugged and molested. So, she told her friends. They deduced who they believed did it, and the blame fell on this guy that no one likes. He’s old (older by decades than the victim), has always been sleazy, is known for ripping people off, and he actually makes his living carrying around a donation box that he says goes to help some group, but really he pockets the cash and eats the food himself… a serious low life.
So at another event that he went to, some friends of the victim assaulted the accused. Nothing major, he wasn’t hospitalized. He denied the allegations. As time went on, the victim started remembering more of what happened, started talking to more people who saw her that night, and she was assured that she was probably drugged and at the very least groped… but not by the guy who had been initially accused.
The victim didn’t maliciously try to ruin this guy’s life, and luckily there is the fact that he deserves much worse than what he got for some of the shit he has pulled in the past. There’s no need to feel sorry for him; I don’t believe in karma, but if I did, this was karma incarnate. But the fact remains that someone was falsely accused, albeit justifiably and innocently accused.
He just couldn’t have done it because he was sitting at a booth with his box all night, and a lot of people saw him, while many others saw some strange guy no one knew holding up the victim at various points later in the night,
Another woman I know was out with friends drinking at a party near her place. She had just gone off to college and was more or less drinking heavily for the first time. At some point in the night, she blacked out and came to while walking alone on a street downtown, a couple miles from where she lived and had been hanging out the night before. She remembers nothing of the night. She was positive she had been drugged.
She went to the police station and submitted to drug tests, which all came up clean, except for alcohol. They told her she was lucky they didn’t charge her with underage drinking. She said she felt like she had been raped. They asked her who did it. She didn’t know, and said she had to find out what happened from the friends she was out with. She scheduled a time to come back and talk to them. She was obviously very upset at this point.
She contacted all the people she was with, something like five females and two males. They all gave her the same story: she got wasted, met some guy who was a friend of a friend of a friend, and started to leave with him. One of her female pals stepped in and tried to talk her out of it. The victim then apparently screamed at her friend and told her to mind her own business. This was definitely out of character for her.
She never went back to the police station. I don’t know if she’ll ever really find out what happened that night. She doesn’t know the guy, and she remembers nothing of meeting him or leaving with him. She doesn’t know what she did that night, what was done to her, or even how she got back outside, dressed and on the street with all her things. It’s possible he just brought her to his place to crash on his couch and then told her she had to leave in the morning. It’s also possible he (or who knows who else) raped her.
It’s hard when the victim is unable to give an account of what happened, even during points when they seemed completely conscious to all friendly observers. It’s even harder when it gets to the point where the couple has enough privacy that there are no other witnesses. If the only person who remembers anything is the person accused of rape… how are you supposed to piece together any sort of reliable narrative of what happened?
I decided to contact her and ask her about the incident again, and to get permission to tell her story. One thing she said kind of initially shocked me.
She told me that her incident would have been similar to if she had come to in the middle of the street with a pain in her back like she got hit by a car. Obviously, the driver isn’t excused from hitting her, but she was an idiot for wandering aimlessly in the street. It’s not that she’s to blame. She wasn’t asking for it. She was just playing with fire while totally shit-faced.
But she’s quick to point out that women should still feel able to go out and party. Just because someone has been hit by a car doesn’t mean you never again try to cross the road. She seems more upset with herself for getting so drunk, and she has since gotten that drunk again. She’s gotten drunk and woken up in bed with an ex she hadn’t talked to in months. He said she knocked on his door early in the morning and threw herself at him.
So… she doesn’t even seem to have changed her habits. She appears to see it as a calculated risk she’s willing to take. To each their own.
I don’t care what anyone says… when you mix intoxicants and sex, there is the possibility for a legal gray area. Every law has a gray area. Even murder has one. Sure, if you murder someone while you were so wasted, but you can’t remember it… you’re still guilty. But we make allowances for self-defense, and there is definitely a gray area there regarding what constitutes a threat worthy of lethal force.
No one wants it to be open to debate. It would be so much easier if we just had simple ways of delineating what is right and what is wrong. We don’t live in that reality, though. I wish we did, but we don’t. We live in a reality where our perception and memory are not flawless. Without the video, photos and text messages, I don’t think the Steubenville rape case would have been so open and shut. Is the answer to have cameras everywhere? To video everything? I don’t know… but if we did, that would result in a lot of child porn being generated by amorous teenagers.
There are no simple answers in some situations.