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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.
Thing of Things 
There are a lot of things going on here, one of them being of course that people are saying different things and other people are interpreting them in variously plausible ways, as you note. Here’s a thought on another factor; rapists of course always have excuses, and the excuses seem to work far too much of the time. One excuse is “she was into it at the time; it’s not my fault she doesn’t remember clearly or regrets her drunken actions,” which if it is allowed to work at all sadly works almost as well if the rapist is lying (or deluded) about whether she was actually into it at the time (since alcohol does mess with memory, and people seem to like to question the reliability of rape victim stories anyway). I think some of the times when feminists say things that seem a little implausibly strong about drunk sex they’re worried about that kind of excuse (maybe that’s similar to what the woman you mentioned was thinking). I certainly don’t think calling all drunk sex rape is the way to prevent that excuse from working, but I confess to not having a lot of plausible strategies of my own to suggest.
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Women are more likely to genuinely regret a sexual encounter, for the various cultural reasons that lead to the casual sex gap, etc. Men, on the contrary, are conditioned not to admit it even when they *do* regret a sexual encounter. Therefore, women are often like “of course alcohol might make people consent to sex that they genuinely regret the next morning”, while men are often like “what are you talking about, I literally cannot comprehend such a thing.”
Which of course leads to a great deal of misunderstanding of each other’s viewpoints when it comes to discussing drunk sex.
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There may also be a gap about the meaning of regret. I can certainly imagine consenting to sex while drunk that I would regret while sober, but so what? Regret is an inevitable part of life, and it doesn’t mean that either I or someone else must have done something horribly wrong.
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To answer your question about multiple meanings of the word “drunk,” I would say that yes, there absolutely are. In fact, I’d go so far as to say that outside of legal definitions relating to BAC, “drunk” is a subjective feeling which means something different to *every single person* who experiences it. It can be very hard to judge where you are on the spectrum between tipsy, drunk, and shitfaced when you’re evaluating your own experience. Evaluating someone else’s condition can be much harder, especially if you are intoxicated yourself. (Sometimes it’s obvious, but some people hide drunkenness very well.)
The spectrum of intoxication is very large, and everyone reacts differently to different levels of drunkenness. For instance, I’ve been so drunk that I spent the night throwing up and then had a terrible hangover the next morning, but I’ve never been “blackout” drunk such that I didn’t remember what I did the previous night. However, I understand that some people reach the latter state long before they reach the former state. Many people claim it even depends on what type of alcohol you drink! (Tequila in particular has a very bad reputation.)
So, yeah, there’s a lot of ambiguity here. Even if you were to make a law along the lines of >= x BAC means a person is incapable of consent, and even if people started breathalyzing themselves before sex, I seriously doubt that you would consistently find that people over x BAC subjectively felt they were unable to consent, or felt they were raped the next day.
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Yeah, I’m one of them.
I will very rarely be sick from alcohol, nor are my hangovers particularly nasty, but if I drink too much too fast I can have no memories or seriously patchy memories for around 4 hours thereafter, longer if I keep drinking.
And yes, there are examples like a friend of mine who appears at worst mildly tipsy until actually literally falling over, as against someone else who appears (and describes the experience as) being drunk after half a beer and staying drunk until 2 hours after stopping drinking.
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“For instance, I’ve been so drunk that I spent the night throwing up and then had a terrible hangover the next morning, but I’ve never been “blackout” drunk such that I didn’t remember what I did the previous night. However, I understand that some people reach the latter state long before they reach the former state.”
Somewhat off topic, but what’s going on here is that people at a certain level of tolerance stop throwing up after drinking (though they may still throw up the next morning). Bypassing the vomiting stage allows them to drink more, which means they can get to the blackout stage, which a less experienced drinker might never get to. There is also some evidence that people have more tolerance for forms of alcohol they’re used to.
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Makes sense. I don’t drink very often.
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As I understand it, it’s also the case that drinking very _quickly_ can increase the chance to induce blackout, even if the absolute level of alcohol consumed is not as high.
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Agreed. Also, I have a tendency to refer to myself as being “drunk” when really I’ve had 2 beers and am starting to feel them. (i.e. “I’m drunk as a skunk!” when someone asks me why I’m giggling at a deeply stupid pun). At that point, I’m certainly capable of consenting to sex, but I AM throwing the word “drunk” around. On the other hand, I’ve been curled up whimpering after throwing up, in no way capable of consent, and I think that’s the kind of “drunk” where, were someone to have fucked me, it would be rape.
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The answer to all these problems is to confine “too-drunk-to-consent” to cases where the woman exhibits indicia of extreme intoxication visible to third parties, e.g., stumbling, falling down, falling asleep, throwing up. It shouldn’t matter to the law what the woman is feeling or thinking. What matters is what her partner can observe. Any other standard is manifestly unjust.
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> But then you need mens rea to rape someone, which you clearly don’t have if you’re that drunk,
You don’t need to be sober to rape someone. If I drink a bottle of whisky, start staggering around and slurring, and then retrieve my (hypothetical) firearm and shoot some people, I’m rightly guilty of murder, because my choices led to commission of the act. Even though I’m too drunk to consent to sex.
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Which seems to suggest that if two sufficiently drunk people have sex, they’re both rapists. If there is indeed a state short of passing out which nonetheless counts as too drunk to consent (which I’m not entirely sold on; based on my own, er, extensive experience with alcohol, I feel like anything I went along with while I was at any given level of drunkeness I can remember was something I should be counted as consenting to) that might actually be the appropriate thing to say about such a situation.
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I think a major issue with considering both partners rapists if sufficiently intoxicated is that rape victims will be afraid to come forward with accusations for fear of opening themselves up to counter-accusations.
On the other hand I am concerned that considering neither partner a rapist when both were sufficiently intoxicated will encourage excessive drinking (and feigned drunkenness) as a shield against accusations (both true and false).
Not sure what the solution is.
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Not everybody thinks that mutual drunkenness is problematic for deciding who should be responsible.
“The difficulty of defining incapacitation and consent was underscored last week when Dean Wasilolek took the stand. Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex.
“They have raped each other and are subject to explusion?” Hitch asked.
“Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” said Wasiolek.”
Source: Dean Sue Wasiolek is the Assistant Vice President for Student Affairs and Dean of Students
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@thirqual: In addition to being morally repugnant, there’s pretty decent evidence that that kind of “benevolent sexism” (asserting that women are somehow less responsible for their actions than men) hurts both women and men, and I’m disappointed that it’s even in the overton window.
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Unless I’m grossly misremembering: According to my law A-level (in the UK, seven years ago), depending how drunk you were you would *not* be guilty of murder. It’s something along the lines of, if you get so drunk that you have no idea what you’re doing, then you can’t be guilty of any crime that requires intent. (Some crimes require only recklessness for the mens rea, and others only negligence, and you can be guilty of those.) You’d be guilty of manslaughter, but not murder. (Unless you were intending to kill someone and got drunk for dutch courage.)
However, I think that rape only requires recklessness.
IANAL, don’t quote me, etc., but I do think this is more complicated than you believe.
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TLDR: legal and social consent are not the same. Moral and legal rape are not the same. Intoxication is not a defence to a legal charge of rape. Morality is, in my view, determined by intentions, anticipated consequences and probable consequences, so there is no general case for two generic drunks.
There is a confusion here between social consent and legal consent. A person below the local age of consent can give social consent to sex (can genuinely desire to engage in sexual activity) but cannot give legal consent to sex. An adult who has sex with such a person is probably guilty of rape, depending on “bright line” laws and the adult’s beliefs. There is also a confusion between legal rape and moral/social/pyschological rape. The age of consent in Germany is fourteen, while the age of consent in the USA is eighteen. The two countries will class some people differently with regard to legal rape, but I do not think that the majority of Americans would think that a seventeen-year-old who gave social consent to sex would be horribly traumatised by having sex.
As I understand the state of UK law (I am not a lawyer but I did just check my understanding against the statute), rape requires either that the rapist deliberately have sex with a person knowing that the victim has not given legal consent, or acts recklessly with regard to consent; and that the victim not consent. You *can* rape the socially willing, but not the legally willling. If Bob has sex with a woman who consents (in the social sense but not the narrow legal sense) and Bob believes that she does not (socially and thus legally) consent, Bob is just as guilty of rape (in the legal sense) as if she did not consent at all and the woman has been raped (in the legal sense). From a moral point of view, Bob is morally a rapist (he tried to commit moral and legal rape) and the woman has not been raped (because she wanted to have sex with Bob; she may not even be aware that Bob was trying to rape her). The opposite scenario also holds. There was a UK case where a soldier and his friends had sex with his wife against her will and were acquitted of rape because the court decided that they honestly and reasonably believed that she consented and were not reckless with regard to her consent.
Again, as I understand UK law (having just looked it up), intoxication is divided into voluntary and involuntary intoxication, and crimes are divided into those of specific intent and those of basic intent. (There is a lecture on intoxication here: http://e-lawresources.co.uk/Intoxication.php.) Involuntary intoxication is a much stronger defence than voluntary intoxication, which is not a defence at all if the offender drinks to acquire “Dutch courage” before commiting a premeditated crime. Intoxication is a defence for crimes of specific intent, such as murder, but not for crimes of basic intent, such as rape.
If two adults set out to rape each other and have sex, they are both rapists from a moral point of view but no legal rape has been committed (because both consented to sex). If two drunk people have sex but neither intends to commit rape, both aspects get a lot trickier. Legal consent must be positive and genuine: failure to object does not constitute consent. Legal rape is committed if one party does not legally consent; I’m not sure about how intoxication interacts with consent. Whether moral rape has occurred depends on how you define it. Personally, I would say that a pair of drunken strangers who have sex are both significantly morally blameworthy, because each hasn’t considered the consent of the other participant’s future self (and their own future self) even if their present selves are socially willing; but that lovers who have sex often and are using contraceptives that don’t require action while drunk are close to morally blameless if they have sex while drunk. The moral aspect comes from the intentions and the consequences (both anticipated and probable), so there is no general case for two generic drunks.
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each hasn’t considered the consent of the other participant’s future self (and their own future self) even if their present selves are socially willing
So? Present consent depends on the present individual; any other standard leads naturally to tyrannizing people “for their own good, really; they’re bound to regret it later.” (And also strikes me as fundamentally rather mad.)
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I direct you to http://swimmer963.com/?p=370 and https://www.facebook.com/yudkowsky/posts/10152908949454228.
Every time someone makes a binding decision to do something in the future that they will want to not be doing when they are doing it, they are violating the consent of their future self. Commiting to an an unpleasant medical treatment violates consent-in-the-moment. I’m lead to believe (by Brienne Strohl) that the D/s community has much more thoroughly thought out ideas about consent, with compacts to violate future consent-in-the-moment being perfectly normal. What else is a safeword for. if not to distinguish between “I really want this to stop” and “I want this to stop but am also excited by it and don’t want it to stop”. People don’t have simple views about things because *brains aren’t simple*. People have conflicting views within their own minds: they are large, they contain multitudes.
‘Present consent depends on the present individual; any other standard leads naturally to tyrannizing people “for their own good, really; they’re bound to regret it later.” (And also strikes me as fundamentally rather mad.)’
When someone decides to do something in order to increase their future utility, they are making a decision about a future person who is not the same person as the decision-maker. There is no unchanging epiphenomenal tag that identifies me today as being the same person as me at age ten. We are similar, but we are not the same person; we have different brains and hormones, and thus different patterns of thought. There is also no magic horizon that makes two different mes suddenly identical: the person I will be when I wake up will have a brain that is very slightly different from the one that is currently writing this comment, as will the person I will be when I have finished writing, as did the person I was before I began writing. The space of possible minds does not contain sharp boundaries. You can treat the me of five-minutes-from-now the same as the me-of-the-present without consequences (in most cases), because the differences are (mostly – suppose I get a phone call in two minutes time telling my mother is dead?) very small, but treating me the same as my ten-year-old self is obviously stupid.
If you adopt a standard of caring only about present feelings, you become unable to care about future consequences at all. I can’t choose to go to work in order to get paid, because the paying happens in the future, to someone not completely identical to the me in the present. It doesn’t matter whether it’s me making the decision or you making the decision for me: at some point, somebody has to care about a person who does not exist yet if decisions are to be made about the future.
As to being tyrannical, making decisions that affect other people’s utility is not tyrannical. There is a sliding scale. If I buy Christmas presents for my family without letting them choose the presents, am I being tyrannical? If I restrain a toddler from walking into traffic, am I being tyrannical? (I have clearly violated the toddler’s consent-in-the-moment, after all.) If a paramedic moves an injured person into an ambulance and causes that person pain in doing so, is the paramedic being tyrannical? It is perfectly reasonable (and morally imperative, by my morality) to make decisions that take account of the future utility of others. Shouting “Tyranny!” will not make the utility-maximising action wrong: if people feel unhappy about not being able to choose for themselves, that reduces the utility of that option, but it doesn’t mean that is is necessarily not the best option.
I can have deontological constraints (like “Don’t kill people you hate, even if it seems like a good idea at the time”) in order to avoid the negative consequences of my imperfect rationality, One of those constraints can be “If someone asks you to not do something you think will increase their future utility, you should check that you’ve heard all the evidence and aren’t acting on flawed reasoning”, but that doesn’t mean that I should never do something that violates consent-in-the-moment. One of the guiding principles of moral philosophy is that your moral system should reproduce basic ideas like “Protect small children from harm”, and “Never violate consent-in-the-moment” clearly fails that test because it forces me to let toddlers play in traffic. It also forces me to never decide any conflict between two other people, because I must necessarily do something that one of them doesn’t want. If we go with “Only take account of present desires”, I can’t even attempt to increase utility, because the deontological constraint forbids me to take acount of all future utility, including the utility of my future selves.
Consider some simple thought experiments. Alice is a happily-married mother of three. Her colleague Bob hypnotises Alice and makes her want to have sex with him, then has sex with her. When Alice wakes up in the morning, she feels horrified and violated; her marriage breaks up because of her adultery. Has Bob done anything wrong? Suppose that instead of hypnotising her, he has sex with her when she’s drunk. Is it wrong for him to have sex with her if he knows what the consequences will be? How about if he has a good idea of what the consequences are likely to be? Is it culpably negligent of him to have sex with her without thinking about what the consequences might be?
Bob is a mechanic. Charles asks Bob to service his car’s brakes, and Bob takes the opportunity to sabotage them, causing Charles to crash his car and die. Has Bob done anything wrong? Would it be wrong of Bob to service Charles’ car’s brakes while drunk, because he might cause Charles to crash his car? (Hint: the law says this is criminal neglicence and leaves Bob open to a charge of manslaughter.) In light of your answer, would it be wrong of Bob to have sex with Alice while Bob is drunk, because he isn’t able to apply his full faculties to an important decision and might hurt her as a consequence?
Suppose Bob services and drives his own car while drunk and dies as a consequence, leaving his children orphaned. Has Bob done something wrong? Suppose Bob doesn’t have any children. Is it OK for Bob to put his future selves at risk for no good reason? Doesn’t he have a moral obligation to allow Bob-tomorrow and Bob-aged-eighty to live if it costs him little to do so? Would it be tyrannical and fundamentally mad for one of Bob’s friends to stop him from driving while drunk?
I would hope that anyone reading this will answer that in every case, Bob is doing something wrong. If we care only about consent-in-the-moment and the utility of people presently existing, we have to answer that he is doing nothing wrong in every case.
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If I have a chance, I’ll try to formulate some more specific replies, but the short of it is that our disagreement here stems to a large extent from the fact that you accept a number of Less Wrong viewpoints that I don’t, due to a difference in axioms and priors. Two of the most immediately important differences would probably be that (a) I do believe in the existence of a unitary self and (b) I am not a utilitarian.
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I think it’s interesting to also look at attitudes to cheating. If I go out, get ‘slurred speech’ drunk and have sex with someone else, should that be considered cheating?
Every time I’ve been ‘slurred speech’ drunk I’ve still been lucid enough for me to consider myself able to consent, do I would say yes it would. But if it should be considered re then of course it shouldn’t. As others have mentioned I’ve been vomiting drunk, falling over myself drunk and pass out dunk, and everything before pass out drunk I’ve felt that I would consider myself guilty of cheating if I had had ‘consented’ to sex with someone.
(Obviously this is different to someone having sex with me where I resist or just lie there because I don’t have the energy to resist, which is obviously rape.)
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I think the disconnect begins with distrust. A lot of people think of antirape-culture activists as searching for any excuse to paint someone as a rapist as bring every available weapon to bear against them. Seeing as this is the culture that coined the term “rape culture” and which routinely mocks-without-reading any suggestion that any given person did not rape any other given person, these listeners have a point.
And if you expect a definition to be applied adversarially, it makes sense to reject as vague a word as “drunk”.
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I have heard some anti-rape-culture people explicitly say that tipsy consent doesn’t count, and say this as if it were a basic principle that they expect everyone to agree with.
A substantial contingent of people have actually heard that, and some may have heard the latter more often than the former.
“Tipsy sex is rape” is unreasonable but, to many people, doesn’t feel safe to ignore or openly question, so it’s easy for it to grab a lot of attention and affect and get stuck on. Or, political polarization encourages emphasizing less reasonable enemy arguments.
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I think the real issue here is tribalism. When people in anti-feminist circles hear the phrase “drunk sex is rape” they aren’t interested in clarifying what the speaker means by “drunk” and having a nuanced conversation about consent. They think “oh no those man-hating feminists want me jailed for having sex, not again!” and start fighting back viciously. In other words, people interpret “drunk” as “tipsy” because it fits into their idea that feminist anti-rape policies (and feminist ideology in general) harm(s) men.
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I have an alternate explanation. If different feminists mean different things, and your are interested in staying out of danger, it isn’t sufficient to just stay out of danger from the half who really do mean passing out drunk. You need to stay out of danger from all of them, which means having to handle the worst case.
So for practical purposes, if only some feminists mean “tipsy”, you need to treat that as if all feminists do, because it poses the same danger to you as if all feminists do. It has nothing to do with fitting into ideology.
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What you are proposing is the “Schrodinger’s Feminist” idea, the mirror image of the “Schrodinger’s Rapist”. I think they are both fallacious, for the same reason: not taking probability into account.
If you are contemplating taking some potentially dangerous action, such as talking to a man (if you’re a woman); or talking to a woman (if you’re a man); then you need to calculate the expected value of the action to see if it’s worth it to you. Otherwise, you end up in a situation where you never leave your military-grade armored bunker for fear of male rapists or female feminists — who, after all, undeniably do exist in the outside world.
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This is not the mirror image of Schrodinger’s Rapist because Scgrodinger’s Rapist is about how one deals with individual people, and this is about how one deals with a movement. It would be inappropriate to assume that an individual woman you meet thinks tipsy sex is rape. But when talking about how to interpret the intent feminist-created rules–which are created by groups of people–and when worried about how those rules may be applied, it’s a legitimate worry, even if only some of the people who created the rules and run the committees had that in mind.
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It’s also not “schrodinger’s feminist”, because there isn’t actually any ambiguity. Specific feminists actually are saying “tipsy sex is rape” (I’m pretty sure the feminist that conducted the “1 in 5” study would be an example), and have advanced far enough to get specific educational institutions to enshrine their views as official policy.
Further, it’s not enough to say “tipsy sex isn’t rape”, you need to actually define what IS rape. “Sloshed”? “Hammered”? “Shitfaced”? A blood alcohol level higher than .15? Slurred speech? Blurry vision?
I am not aware of an “expected value” available in sex that is worth a potential felony conviction and a sentence up to and including life imprisonment. Removing the “expected value” is the entire point of punishments like the ones the justice system levies against rape. As I understood it, the sexual revolution was built on the idea that sex was a good thing, and there was a broad field of clearly acceptable activity. If “drunk sex is rape”, and there’s no clear definition of “drunk”, then completely separating alcohol and sex is the prudent decision.
The more I read about Social Justice, the more I conclude that total voluntary segregation is the only reasonable solution. It may not be perfectly attainable, but the internet can get you most of the way there. Just go full anon, scrub your identity as much as possible, and never interact in a way that can expose you.
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For me there’s definitely no stage of drunkenness at which I’m conscious and able to communicate and physically participate in sex but can’t understand what I’m doing, even if my speech is slurred and I can’t walk in a straight line. However, there is definitely a level of drunkenness at which I probably shouldn’t be signing any binding contracts because I might get lazy and miss some of the fine print.
I get the impression that some people see sex as a very tricky and complicated thing to understand, where you can easily miss some equivalent of the fine print such that you effectively haven’t consented even though you’re clearly into it and know who it is that you’re having sex with. I don’t understand this view myself and would appreciate if someone here could steelman it.
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If you can’t digest a contract, can you evaluate the risk of STD transmission for every act as it’s about to start, and stop it in time to stay within your limits? Can you think through the social consequences of what’s about to happen, the effect it may have on your relationships with your friends, family, authorities, future partners, future employers? Is this person trustworthy, or will they brag to their friends, secretly take photos of you, remove the condom while you’re not looking? Are you actually into it, or are you just trying to be good, doing what’s expected of you to the best of your ability? It can be complicated sometimes.
Also, some people seem to consider anyone too weak to resist due to voluntary alcohol consumption to be “fair game”, and enthusiasm from the receiving partner is optional in their idea of (legal) sex.
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everything up to the “it can be complicated sometimes” seems like good examples of what someone in a previous thread called “badsex”, but I would think clearly not grounds for an accusation of rape, yes?
the last part sounds like total incapacitation, which I think everyone here at least agrees is definitely rape.
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I was mainly trying to show that sex can have serious and far-reaching effects on an individual’s life, and so sexual consent should not necessarily be treated more frivolously than, say, medical or political consent.
Also, I would argue that taking off the condom does invalidate consent — you agreed to an act with a lowered STD and pregnancy risk, but the other person unilaterally raised the risk level.
Generally, my position is that having sex with someone who is visibly drunk is a bad idea, unless you know this person well enough to trust them not to blame you.
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pulling a condom off is an extremely horrible thing to do. I see a pretty clear case for arguing it’s even a crime in a legal context, whether or not STDs or pregnancy is actually involved. It seems like pretty much the definition of reckless endangerment, at a minimum. It’s obviously a very good reason for terminating sex, never letting the creep near ones genitals ever again, and warning others to do the same.
I don’t think it amounts to rape.
In a recent conversation I was privy to, someone raised the idea that cheating on one’s partner made one a rapist if their consent was conditional on the basis of fidelity. I don’t think that idea is sound either. Rape is sex without consent. Violating someone’s trust and violating someone’s consent seem to me to be two distinct ideas, and I think the discussion is better off keeping the distinction clear.
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So you think it’s horrible and probably should be a crime, but we shouldn’t call it “rape”? Well, I don’t really have a strong opinion at this level.
“Rape” is a weird word that has meant many different things during its long history. I think its connotations of “fate worse than death that turns the victim into an empty shell” are harmful, so I wouldn’t mind if it was abandoned altogether.
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“If you can’t digest a contract, can you evaluate the risk of STD transmission for every act as it’s about to start, and stop it in time to stay within your limits? Can you think through the social consequences of what’s about to happen, the effect it may have on your relationships with your friends, family, authorities, future partners, future employers? Is this person trustworthy, or will they brag to their friends, secretly take photos of you, remove the condom while you’re not looking?”
See, conflating all these things with rape is a bad idea. For starters, they’re entirely different things, so you’re not carving reality at it’s joints and you will make bad decisions.
But worse than that; you allow anyone who is the slightest bit disinclined to believe you to dismiss any “rape” as merely “someone who didn’t think that particular sex act through and is now worried about looking like a slut.” This isn’t a hypothetical problem, as you should probably be aware, considering you’re a person on the internet.
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I feel like a lot of the people who like dismissing rape as “someone who is worried about looking like a slut” are going to continue to quite enthusiastically do so regardless of what feminists say about it.
That said, I think there is (probably?) a meaningful difference between “made a mistake in their risk calculation” and “too intoxicated to make a reasonable risk calculation”, in the same way that there’s a difference between “signed a bad contract” and “too intoxicated to tell if the contract is good or not.”
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If you can’t digest a contract, can you evaluate the risk of STD transmission for every act as it’s about to start, and stop it in time to stay within your limits? Can you think through the social consequences of what’s about to happen, the effect it may have on your relationships with your friends, family, authorities, future partners, future employers? Is this person trustworthy, or will they brag to their friends, secretly take photos of you, remove the condom while you’re not looking? Are you actually into it, or are you just trying to be good, doing what’s expected of you to the best of your ability? It can be complicated sometimes.
I have pre-evaluated what sort of sexual acts I’m happy to engage in casually and what acts I want to use barrier contraception for – if I’m drunk I don’t change my mind about these. I also tend to sleep with people I already know socially, so I know what sort of people they are already**.
[FWIW I’m female and I’ve had good experiences having drunk sex including experiences where the guys were a good deal more sober than me – I can enthusiastically consent after a large amount of alcohol].
*I probably do include tipsyness in my definition of drunk, but I think I can probably consent if I’m say, slurring my words (though I don’t tend to get drunk enough to slur my words). If I appear to be enthusiastically consenting then I am not too drunk to have sex I think.
**I have never really had any traumatic experiences.
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Past Ozy didn’t have the “motte and bailey” concept, I guess.
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Or, for that matter, the Worst Argument in the World.
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I think one of of the big reasons for the push back is because of the sexism that comes with it. “Sex with someone who is drunk is rape” is always followed by the implied “If and only if you are male”, being that we know this will be applied the other way exactly never.
As previous commenters have pointed out, we’re happy to grant people agency when it comes to assigning blame for things done while drunk. Rash’s Cheating question really hammers this one home. If one can’t consent, how can they be held responsible for their actions? And after all, it’s not really cheating if you’re being raped, right? I still think it would be a dick move if I really wanted to sleep with someone without cheating on my current partner, so I made sure to drink away my consent first.
I’d love to tell hypothetical Dick-me that people have a responsibility not to put themselves into states that lead to making bad decisions, but I think the anti-victim-blaming movement would like a word. (Not to be snide, but I was under the impression that it’s always the rapist’s fault. Does that not apply here?)
It would be insane to dub drunkenness as a ‘get out of repercussions free’, which is why we don’t do it in any other context. What I have a problem with is when people try to pick and choose which behaviors we have agency for at an object level based on what gives them bad feelings, and then tries to backwards rationalize it with appeals to principles. Honestly, if someone can articulate a line of reasoning that clears up the paradox above (1. Drunk sex is rape, 2. Drunk sex can still be cheating, 3. One cannot cheat on their partner by being raped), they’re a better person than I.
The last thing that gives me trouble here is the dilution of the word rape. Words lose clarity as their usage broadens. As it stands, Rape is pretty unambiguously an awful thing. Fact is though, if two people getting blackout drunk and having sex is mutual rape even if they’re all for it, then it’s rape and I don’t care! I’m even possibly all for it if two people can now mutually enjoy rape experiences together… This is batfuck insane. And when told someone I know has been raped, I don’t want to have to get out the ruby slippers and query “Was it a good rape, or a bad rape?”
All said, I think that trying to claim drunk sex is necessarily rape is far too blunt as an approach. I’m much happier applying some nuance and being able to say that alcohol can be used to facilitate rape despite people still maintaining agency while sauced.
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I think the “agency” issue may be focusing too much on blame. People’s tendency to assign “blame” is pretty damn irrational, most of the time, and varies a great deal depending on who they want to blame. (For example, there a saying, “a friend is someone you try not to blame when they do something bad”.)
I see no real problem with (say) not blaming anyone at all, and considering it an unfortunate accident. Of course, that isn’t what people who want to declare drunk sex legally “rape” want, but still.
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““Sex with someone who is drunk is rape” is always followed by the implied “If and only if you are male”, being that we know this will be applied the other way exactly never. ”
This is probably my truest reaction to the whole issue.
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The issue of exactly where to draw the line between “consensual” and “non-consensual” is already kind of tricky in general, and when alcohol is a factor, it becomes a mess! I’m not entirely sure exactly how to measure the level of drunkenness at which sex should become a crime. The best I can do is to advocate the general principle that if you have to question whether or not it may be rape, then you shouldn’t be doing it.
I drink and have been part of a university student subculture (first undergraduate, then graduate) which may be considered to be an example of a “drinking culture”. And I would back what Pseudonymous Platypus has stated upthread: the definition of “drunk” (and similar words) varies greatly from individual to individual and from social group to social group. Thus, it’s not too shocking to me that a lot of people interpret “too drunk to consent” as practically the same as “not 100% sober” in certain contexts.
In particular, I’ve noticed among subgroups of the drinking culture where binge drinking is sufficiently normalized to seem not questionable at all or even a habit to be proud of, that the use of “drunk”, “shitfaced”, etc. actually become more liberal. That is, “to get drunk” can mean anything as mild as drinking some alcohol until you feel some effect, which most of the rest of society refers to as “getting tipsy” or “getting buzzed”. It’s a bit of a stretch to imagine that having one beer could qualify as “getting drunk” to them, but not that much of a stretch. It is clear to me that this kind of liberal usage arises from carelessness in the absence of any stigma surrounding drunkenness. To give a converse example, I associate a lot of stigma to drunkenness (largely due to my upbringing), and feel very reluctant to refer to myself as “drunk” even on occasions where I pass the level of mere tipsiness.
There are other factors which may cause one to associate “drunk” almost with “not 100% sober”. For instance, a good number of those who drink have a low enough tolerance that one drink has a very significant effect for them, and much more than that may leave them pretty much wasted. For another thing, it is easier to become influenced by the language of certain types of authority figures who preach responsibility (a category easy to assign to some anti-rape-culture types on campuses) who essentially imply that tipsiness is already drunkenness, e.g. “buzzed driving is drunk driving”.
And there are some who are just rhetorically sliding down a slippery slope, either genuinely, or in order to mock anti-rape-culture arguments. “Drunk sex is rape because alcohol impairs one’s ability to make informed choices? Well, technically, any amount of alcohol in the bloodstream whatsoever will result in at least a little of this impairment…”
I can’t really think of a solution for terminology that everyone will understand to mean “not capable of informed consent”. The best I can come up with at the moment is “not capable of acting consciously / self-consciously / self-reflectively”, which is most definitely distinct from unconsciousness, but also distinct from tipsiness.
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> The best I can do is to advocate the general principle that if you have to question whether or not it may be rape, then you shouldn’t be doing it.
That’s a really bad principle. No matter what the line is, there’s always going to be things that almost cross it.
To put it another way: what if I only have to question whether or not I should be questioning if it’s rape? What if I only have to question whether or not I should be questioning whether or not I should be questioning if it’s rape? Does this recursion end *anywhere* short of “you should literally never do anything at all, ever”?
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There is no infinite recursion here because I’m drawing a distinction between “rape” and “bad behavior”. The former forms a proper subset of the latter; i.e. all rape is wrong, but there are plenty of wrong actions which aren’t rape.
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Actually, my wording should have been “…if you have to question whether or not it is rape, then you shouldn’t be doing it” rather than “…if you have to question whether or not it may be rape…” Maybe that created confusion.
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Plenty of recursions converge. I am perfectly comfortable denying that
(I had reason to question whether)^N I might be committing rape
for any value of N.
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Can anyone tell me what I did wrong in html so that everything below the link in my comment becomes underlined when I move my cursor over it?
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I think you’re absolutely right about people using “drunk” to mean different things, but not necessarily about who uses it how. I use “drunk” more or less to mean “I can tell that I have consumed alcohol,” which happens after like half a glass of wine. My friends who drink more than I do generally use “drunk” to refer to “actually noticeably impaired,” and one of my college friends was more or less of the opinion that it didn’t count if you could remember it the next day.
But yeah, when I was in college I definitely _heard_ “any sex with anyone who’s had anything to drink is rape,” which seemed silly. I will say that the Title IX training I did a couple months ago was admirably clear about the difference; I don’t know whether I’m a better listener, this place did a particularly good job, or things have just gotten clearer over the past decade
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I suspect it might get even more tragic. I used to assume that “drunk sex is rape” meant “tipsy sex is rape” because “sex with someone too intoxicated to consent is rape” seemed too obvious to warrant the level of messaging it got.
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From the link: “If you have sex w/ someone who is drunk, they are unable to consent”
To me, this naturally reads out as an “If A, then B” proposition: IF someone is drunk THEN they are automatically also unable to consent.
I have been drunk enough to throw up and then pass in to alcohol-fueled nightmares, but the entire time I was conscious I still seemed entirely capable of consent. Obviously, once I passed out, I couldn’t consent, but that’s on dint of unconsciousness, not alcohol.
I think a lot of this is that I’m an Ask Culture / Positive Consent type: if someone is coherent enough to say “yes, let’s have sex”, then they are probably not the sort of drunk we are talking about here.
So, in my “reality bubble”, this statement is just plain false: People who can’t consent, very obviously can’t consent because they don’t say “yes”. People who are merely drunk but still saying “yes” are clearly capable of consent. The criteria is whether they can consent, and this is a very clear criteria; not whether they are drunk, which is a very sloppy criteria.
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This is my position precisely: Anything that is consent in the first place is still consent from an intoxicated person.
Consequently, anyone saying “there is some level of intoxication past which otherwise-valid consent is invalidated” is already mad, and tyrannical. It is no great leap from there to the conclusion that they may very well be mad and tyrannical enough to say “any level of tipsiness whatsoever invalidates otherwise valid consent,” especially since I know multiple people who have said just that.
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I don’t think one has to be mad/tyrannical to say that. I think a lot of people are using the charitable interpretation, which has to do with Negative Consent / Guess Culture: in that culture, it’s totally okay to have sex with someone *unless* they say no. So this is just drawing a line that if someone is so drunk they can’t clearly communicate a “no”, you cannot have sex with them – even though they haven’t technically revoked your consent.
I think this is a very reasonable and healthy position.
I just think that Ask Culture solves this much more neatly, since it becomes pretty much tautological that someone that drunk literally *cannot* consent.
There are also people that feel Ask Culture isn’t enough, and that being tipsy really does negate your ability to consent, yes. But I think they’re a small minority, and most people are simply operating under Guess Culture logic.
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Well, to start with, I think that Guess Culture itself is mad and intrinsically set up to result in rights violations and various other unnecessary harms. I’ll also admit that I often don’t even consider the possibility of a Guess Culture interpretation of a statement, because my brain simply doesn’t work that way.
But I think my above statement still works fine, if we replace “otherwise-valid consent” with “otherwise-valid explicit consent.” And I’ve had not only had people make the argument I’m opposing in those terms, but (apparently, judging by subsequent events) complain to authority figures that I was upsetting (perhaps triggering? what I was told was rather vague) them by opposing it.
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Addendum: This is not purely a matter of theory, as shown by this case: A woman who, among other things, replied to her partner’s asking “should I stop?” with “no, go on, continue” and showed numerous other signs of being aware of what was going on around her and capable of deciding how to respond to it nevertheless pressed charges against her partner, under the theory that her inability to remember the sex the next morning was automatic proof of the invalidity of her consent. And at least some established activists supported her.
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It is generally agreed that sex while on Rohypnol is rape, as is sex while unconscious.
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IMO, blackout sex is genuinely ethically weird, but there’s no way solve it by law (short of banning alcohol). From the point of view of the blacked out person, they really did not consent — the person who did consent is gone, dissolved into thin air along with any memory of their existence, leaving the morning-after person a mess of consequences to deal with.
Unfortunately, our intuitions of the self, free will and responsibility are inadequate for handling such inconvenient cases of reality.
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If I understand what I am being asked, form a decision to say yes to it, and do so, then that is consent no matter what I am on.
Someone who has drugged me to obtain my consent is certainly guilty of drugging me (which I think is quite enough justification for me to kill them, if I so choose, even without the use they made of it, which renders whether that use constitutes a further crime rather irrelevant), but what makes you think that was the case here? She went out drinking, she got drunk, she had a blackout (i.e. inability to turn short-term memories into long-term memories) while remaining lucid and coherent. There is nothing extraordinary about any of that.
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@Nita: If I forget an event due to some cause other than intoxication, does my lack of memory of it mean that it was not me that did it? I certainly don’t think so.
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@osberend
Legally, it is you. Factually, it may as well be your identical (sci-fi) clone, who died after cleverly framing you. Of course, insofar you and you-prime have identical histories, identical brains and identical characters, we might as well assume you would have made the exact same decision and deserve the same responsibility.
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>Someone who has drugged me to obtain my consent is certainly guilty of drugging me (which I think is quite enough justification for me to kill them, if I so choose
… what? I … I’m sorry, the only way I can parse this is so uncharitable-seeming that I think I’m misunderstanding you completely.
Are you saying you believe that:
a) the rape vs non/rape distinction is based on legal consent
b) people should be able to legally consent to things regardless of how intoxicated they are
c) people should be able to challenge anyone who makes them intoxicated, without their legal consent, to a duel.
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I appreciate your epistemic charity, and I do think you’re slightly misparsing me. I’m not convinced you’ll like what I’m actually saying any better though:
a) I think the rape vs. non-rape distinction is based on valid consent, which is what legal consent ought to be.
b) Yes, if they are factually able to consent. Past some point of intoxication, one becomes incapable of doing the things that define consent (roughly: understanding the question, making an uncoerced affirmative decision, and communicating that decision), and not doing those things means not consenting whether one is intoxicated or not. But if one is capable of doing those things, and one does them, then the consent is valid, and ought to be legal.
c) Not only that*, if it’s done willfully, I think the victim should be able to simply kill the perpetrator outright, without any need for a duel. I also believe that any competent adult should be able to challenge any other competent adult to duel (which, of course, the latter is free to refuse) at any time, for any reason, because I am opposed to the existence of consensual crime.
*With a substitution of “valid” for “legal.”
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“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 not held as true in the eyes of the law at least in Canada (famous case a few years ago where the Supreme Court ruled People cannot consent in advance to sexual activity that takes place while they are unconscious ), and at least on California campuses (with the “yes means yes” law, which explicitly states that consent has to be ongoing, which is not compatible with unconsciousness).
It is probably also not true in the U.K. ( Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question. , at the time in question being key), in New Zealand, Norway, etc ( Wikipedia, laws regarding rape ).
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And that’s tyranny.
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It also seems to be a strongly held view in Internet feminist and social justice circles currently. I feel our host is (was?) stating a rather unusual point of view, and would really like some development on this. Giving consent beforehand clashes with the “ongoing” qualifier for affirmative consent. By choosing affirmative consent as the standard, we choose to remove the possibility of consenting beforehand. It has dire consequences (an oral sex wake-up would be, in theory, a crime).
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I see “affirmative” and “ongoing” as requirements for consent as orthogonal issues. Here are five possible standards for consent (content warning: examination of rape cultural views in a neutral tone—I’m not sure if such a warning is required in this context or not):
1. Consent can be neither affirmative nor ongoing: For consent to exist, the receptive partner must not resist or protest at the moment of initiation of a sex act; beyond that, nothing is required.
2. Consent must be ongoing, but need not be affirmative: For consent to exist, the receptive partner must not resist or protest at any point during a sex act.
3. Consent must be affirmative, but need not be ongoing (at all): For consent to exist, the receptive partner must actively choose to engage in a sex act at or before the moment of initiation of that act and must clearly communicate that choice; beyond that, nothing is required.
4. Consent must be affirmative and not withdrawn, but need not be actively ongoing: For consent to exist, the receptive partner must actively choose to engage in a sex act at or before the moment of initiation of that act, must clearly communicate that choice, and must not communicate a withdrawal of consent at any subsequent point during or prior to that act. The receptive partner must be aware of, actively choose to accept, and clearly communicate their acceptance of, any circumstances that will or are likely to prevent them from successfully communicating a withdrawal of consent at any point during or prior to the act.
5. Consent must be affirmative and actively ongoing: For consent to exist, the receptive partner must actively choose to engage in sex at the moment of initiation, must clearly communicate that choice, and must continue to actively choose to engage in sex throughout the duration of sexual activity. It is incumbent on the initiating partner to check in (explicitly or otherwise) with the receptive partner over the course of sexual activity to verify that an active choice to engage in that activity continually exists.
I oppose (1), (2), and (3) as endorsing rape, and (5) as violating the freedom of the two consenting adults to choose the terms of their consent. Only (4) fully preserves individual agency. A lot of SJ activists try to treat the distinction between (5) and (3)—or even between (5) and (1)—as atomic, so that they can attack anyone who endorses (4) as being pro-rape, but that strikes me as an obviously ridiculous position.
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…why the heck are you saying “receptive partner”? Can penetrative partners not be raped? That’s absurd.
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Excellent analysis, Osberend!
I think it would be awesome if most people / social movements could agree on some common ground on this issue. For instance, throughout the comments here, people have said that sex with an unconscious person is so obviously wrong, why would feminists even mention it? On the other hand, the Steubenville kids were apparently not aware of that.
Personally, I support (4) as law, and (5) as a personal policy with people you don’t know well enough.
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@ozymandias: I meant “on the receiving end of an initiation/escalation” not “on the receiving end of an inserted body part/object.” It struck me as an imperfect noun, but I thought it was clear in context (i.e. in contrast with “initiating,” not with “penetrative”); apparently it was not. My apologies.
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I’m still somewhat leery about this. For one thing, in my experience, a lot of times who initiates sex really isn’t binary enough to pick out who initiates. For another, I can certainly imagine cases I would consider to be unambiguously morally (if perhaps not legally) rape– for instance, if one’s abuser has mindfucked one into initiating sex– where the rape victim initiates.
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An imperfect adjective, rather.
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@ ozy
I think it would make sense to stay away from the Ancient Roman definitions in this case. That is, a penetrative partner can be receptive if they’re being actively stimulated / engaged by someone else — the “initiating” partner.
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@ozymandias: Fair. I’m perfectly comfortable regarding the five approaches I listed as a special case for what it means to consenting to a sex act clearly initiated by the other person, with the meaning of consent in other cases being set aside for the moment. The point I was trying to make was about the differences between the five, not their commonalities.
I’m pondering your final sentence. My inclination is to say that the crime (defined morally, not necessarily legally) in that case is not the sex, but the mindfucking, but I’m not totally sure, and it’s also certainly possible that there are relevant differences in the sorts of mindfucking that we’re each imagining.
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I had always understood the word “tipsy” to usually be used as a euphemism for “drunk.” People say they are “tipsy” when, for the sake of politeness or social protocol, or for the sake of dealing with their own cognitive dissonance, they don’t want to say they are “drunk.” Likewise, people say someone else is “tipsy” out of respect to that person.
The way I construe the word as usually used, I take “tipsy” to be a euphemism akin to saying that someone has “passed on” instead of “died,” or that someone was “less than honest” instead of “lying,” or that there was an “incident” between two people instead of a “fight,” or that someone is “homely” instead of “ugly.”
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As I think I said in a comment to the original blog post when it was first posted, I think this depends on many factors. If you’re regular drinking buddies you probably can tell if the other person is sober enough to consent, even if they’re quite smashed. Then again, with a stranger, it’s far more muddled and you should probably resist.
However. The most uncomfortable advances I (as a male-representing person) have been subjected to have been by drunk women. I can in no way comprehend why I would have committed a rape if I for some reason (fear, unability to find any other way to react, etc) had yielded to those advances. Regardless of whether I had been drinking or not.
Disclaimer: I am not an American and I live in a far more egalitarian society. My experiences and insights might not apply to other cultures.
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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.
As a freshman at a reasonably notable Massachusetts university in the mid-1990s, I and all the other people on my floor were informed by our RA in an official capacity that any amount of alcohol whatsoever was technically sufficient to make one unable to consent according to Massachusetts law.
So, no, this is not just some random extremists on the internet.
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Yes, the spread of this idea by means of official university orientations is absolutely worth noting. I’ve seen people from several universities saying they encountered it there, and I certainly did. I’ve little idea of the actual prevalence but it’s certainly out there.
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Low level functionaries tasked with communicating official policies will sometimes exaggerate, as if someone violates a policy they accidentally described as more lenient than it actually is they could get in a lot of trouble, while there’s not much chance of them getting in trouble from people following a policy they described as more strict than it actually is. I suspect that the RA was being the equivalent of the especially stupid warning labels one sees on some products.
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Are those the same sort of low level funtionaries who apparently have the power to expel students accused of rape without due process?
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This is also what is taught at the freshman orientation sessions at my university (as a legal matter), and the official attitude of the student anti-rape activist organization (as a philosophical matter). I’ve tried to persuade them to stop lying about the law (trying to persuade them to change their philosophy just got me talked to for upsetting people), with no success.
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meta-question – why do feminists and non-feminists have such different beliefs about what feminists believe?
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Lots of political/belief groups seem to have similarly large skews (most people tend to be pretty bad at describing what opposing political parties or religions believe). Any thoughts on how to quantify/compare the extent of such differences? I guess by asking non-adherents to predict how adherents will respond to a series of yes-no questions and then comparing prediction accuracy. I’m not so sure the rate for outsiders predicting self-identified “feminists” would be very different from those for predicting “libertarians”, “socialists”, “christians”, etc.
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If you’re in the ingroup of a position or movement, you’re likely to have read a wider range from the most extreme stuff to the most moderate stuff, and be able to evaluate new information in that context, including pushback against things that are wrong; if you aren’t, you might come up against strawman positions posted by “look at these fools!” bloggers, out of context screeds, and a random selection of mutually contradictory good and bad opinions. (See also people who believe that feminists think that men and women are the same, and simultaneously, women are better than men ; sure, but not the same feminists.) You can steelman your own beliefs and do a “no true Scotsman” on people in your movement who disagree with you, while assuming that your opponents’ true beliefs are the most extreme or outrageous ones.
Which leads me to be believe that I may be as wrong about the mainstream of antifeminism as antifeminists are wrong about feminism.
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One reason might be that different feminists believe different things, and non-feminists primarily notice the most scary beliefs because those are the ones most worth pushing back against, whereas feminists either (a) assume that most feminists think as they do or (b) perhaps correctly determine that most feminists believe something less scary or (c) primarily hang out in one particular feminist social circle and attribute that social circle’s beliefs to most feminists (d) realize there is a great diversity of feminist beliefs and therefore don’t say things like “feminists believe this scary thing”?
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The same is also true of both Christians and atheists; liberals and conservatives; and PUAs/MRAs.
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Presumably there are points where drunkenness becomes severe physical debility/unconsciousness where it is largely uncontroversial that consent is impossible. Whether drunkenness such that someone can still say words and know what is happening, but with their perceptions and judgement impaired so severely that they might take stupid and obviously self-destructive actions like wandering into traffic, renders one unable to consent seems to be a question on which opinions differ.
(Even if you resolve the conceptual definition to your own satisfaction, the question of how an observer can easily determine how drunk someone else is may remain difficult)
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The problem here is threefold: first, many of the oft-cited surveys by anti-rape-culture activists, like the infamous 1 in 5 study, have intoxicant-related questions on them that respondents could have interpreted very liberally (and may have been intended to be interpreted liberally, to inflate the results). Second, since there was already a broad consensus that taking advantage of genuinely impaired people is rape, a lot of us have some reasonable suspicions about why the anti-rape-culture activists are suddenly beating that drum so hard. It smells like an attempt to “define rape down”, or make the problem look worse than it is — both very common motives in activist communities. Third, “two rape survivors and no rapist” is an obvious reductio ad absurdum which anti-rape-culture activists resolve, implicitly or explicitly, by holding the man responsible (in a male/female scenario — they tend to just ignore all other pairings).
It also strikes me that, if rapists genuinely believe that even holding someone down while they say “no” isn’t rape, education and awareness campaigns aren’t going to do much. It’s not as if they’ve never heard that it is rape, they just rationalize it somehow; and if they can rationalize that, they will rationalize anything.
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For people who want to have an idea of the ethical standards of the author of the first link, her latest production: Why I am okay with doxing (also okay with physical violence when it is against people who, you know, obviously deserve it).
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> “That said, if I had somehow obtained her real name and occupation from a private source, I doubt I would have hesitated to publicize it the moment she libeled me and PZ by stating that he got an STD at my conference.”
*stares* Like, most of the article I can kinda agree with, philosophically? But she wants to dox someone for committing *libel*? Seriously? *Libel*?
But I have to say, the idea of publishing harassing emails seems totally reasonable. If someone is *handing over* their personal information, then it might be a jerk move to publish it, but it’s not really doxing anyone.
And her example of physical violence was Buzz Aldrin, and I totally have to admit I felt kinda good about him doing that – it didn’t really cause any lasting harm, the way doxing does.
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Why not? Libel is a rights violation and should be punished.
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Would being a confirmed abuser be grounds for doxxing then? I would presume abuse ranks rather higher than libel on the hierarchy of nastiness, yes?
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“Abuse” and “abuser” are words that differently people use differently, even before we get into motte/bailey issues. I would certainly say that the things that most readily come to mind for me when you say “confirmed abuser” would be grounds for doxxing. To be more definitive, I’d need to know what definition your using (or the specifics, if you have a particular individual in mind).
I do think it’s important to note, though, that the fundamental issue for me is “how severe of a violation of someone’s rights is it?,” not “how nasty is it?”
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@Osberend:
https://thingofthings.wordpress.com/2014/11/17/zoe-quinn-is-an-abuser/
…For the record, I think doxxing is a very bad idea, and is unacceptable in pretty much any circumstance.
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I think that “doxxing” covers a multitude of sins.
Publishing an abusive email somebody sent you without redacting their name and email address is doxxing, and I would argue that is a completely justified and proportionate response.
Publishing the email address of someone’s boss so that people from the internet.can campaign to get them fired, on the other hand (especially in places with weak employment law where “causing my inbox to fill up with demands you be fired” is sufficient cause to sack someone) is clearly wrong – except perhaps in a case where someone has been using their job to abuse people*.
Publicising, say, someone’s home address, will generally come across as a threat to their physical safety and I can’t see a circumstance where it’s justified, though I’m open to the possibility that it exists.
Basically a lot of people on the internet seem to see doxxing as the worst possible sin, and I find that abhorrent. I don’t think doxxing is a good thing to do, but some forms of it are appropriate responses to abuse, and conflating all the forms of it together under one word seems to me to inappropriately combine different acts taken for different reasons.
*e.g. a bureaucrat working in Child Protection has been abusing parents and trying to get their kids taken into care for some bullshit reason like the parents being a non-traditional religion, or the child being of a different race.
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@anonymousCoward: Why? Shouldn’t those who violate the rights of others be publicly shamed and, yes, if the violation is severe enough, made to feel physical fear? As for Zoe Quinn, I’ll re-read that post when I get a chance (I should really wrap up some work and go to sleep), but if my vague memories of it are correct, then yes, I believe that doxxing her was at least potentially* appropriate.
*There are two possible caveats. First, if the retribution already inflicted without doxxing is sufficient given the severity of the target’s actions, then adding additional retribution by doxxing them is generally excessive. Second, it may be inappropriate to dox someone if doing so is likely to result in someone violating the rights of an innocent third party.
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@Slow Learner: If someone has been violating the rights of others, why is it inappropriate to use their job as a method of retaliation, merely because they did not use their job as a tool in their violations? Similarly, if someone’s actions are sufficiently violating of the rights of others, what’s wrong with retaliating but putting them in physical fear or (in more severe cases yet) actually physically injuring them?
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Basically proportionality. If someone is being an online-jerk, returning online jerkitude to them seems proportional, whereas giving them employment problems seems out of proportion. That’s primarily an aesthetic judgement on my part, but I think it’s also ethically sound in a vast majority of cases – enough to treat it as a general rule.
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@Slow Learner: I agree that proportionality is important, but I think in terms of level of rights violations more so than jerkitude. So, for example, I have no problem giving employment problems to someone who libels me in a substantive way to a large audience, because they have substantially violated my rights, and I have quite likely (depending on how I got the information, and what sort of employment contract they have) not violated theirs at all.
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@osberend, I think I’m bothered by your “rights” framing of this. To me it’s about proportionality of harm, rather than proportionality of rights violation.
Some people violated my right to liberty once, when they all piled onto a train and made it impossible for me to get off at my stop. The right to liberty is a key one, short only of the right to life…but the actual harm done was wasting a few minutes of my time.
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@osberend
I think the problem with doxxing is that there’s no way to ensure a proportionate effect. Basically, you’re letting a mob-shaped genie out of the bottle, and you can’t expect it to be reasonable in taking revenge on your target.
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@Nita: That’s true, I suppose, but I’ll also admit that I don’t really worry about proportionality past a certain point of severity of the (willful) offense, as opposed to just desire it. So if someone does something that violates your rights in trivial way, you probably shouldn’t dox them, but if they do something fairly severe, then let fly. It’s their own fault for willfully violating your rights, and if they don’t like the consequences, then they shouldn’t have done that.
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@osberend
So, what exactly is “fairly severe”?
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>Why? Shouldn’t those who violate the rights of others be publicly shamed and, yes, if the violation is severe enough, made to feel physical fear?
Extrajudicially?
No. In fact, I would consider that a “rights violation” as well, insofar as such a term has any meaning.
This is the exact same justification as a lynch mob. It isn’t merely equivalent, it is literally identical. I … words honestly fail me, hopefully you get the idea.
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@Slow Learner: I think this is probably a fundamental philosophical difference between us that cannot be resolved without one of us changing basic axioms. I would note, though, then when it comes to retribution (as opposed to compelled restitution), I am chiefly concerned with willful violations. So if they shouldn’t have piled on like that, but meant no ill by it (if they were not in the wrong at all, then there was no violation of rights; your loss of freedom of movement was a risk you chose to take by choosing to take the train), then you should be moderate in your response. But if they intentionally did so in order to make you unable to get off, then you would have been quite justified in doing them great violence in response.
@Nita: It’s a bit of a judgement call, but I’d certainly include any act of willful and substantial libel, for example. On the other hand, telling a lie about me that was not intended to do any injury (perhaps which was meant to improve an example for a point they were trying to make that was not meant to harm me), and which was of a small magnitude—that I would not include.
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@MugaSofer: I think that lynching is wrong insofar as (a) there is a non-trivial risk of error as to guilt and/or (b) the act that the person being lynched is guilty of is not worthy of death (and any additional harms inflicted, if applicable). I believe in the death penalty in principle, although this country makes a great botch of it in practice, and I don’t believe that those entrusted with the power to kill wrongdoers by the State (an abstraction having no real substance) have any more right to do so than anyone else. In the vast majority of cases, at least one of (a) and (b) applies, and lynching is wrong. But not in every case.
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@osberend
And, apparently, you are the one who will discern their true intent? Human beings are prone to bias, especially right after they have been harmed. What will protect you from making a mistake?
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@Nita: In some circumstances, the matter is clear; in others, it is not. In the latter, on should be cautious. Bear in mind that most or all of my positions on doxxing are not “given that it appears that X, you should Y,” but “if in fact it is true that X, then you are justified in doing Y.” That’s not enough to give guidelines for action in all circumstances, but it’s a necessary component.
Meta-note: I am going to sleep now, so if I am playing any part in your continuing to be awake and/or online, that is something to take into account.
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@osberend
I understand your position on an emotional level (for instance, it would be satisfying to remind every troll that they too are a vulnerable person, not an anonymous force of nature), but I’m not convinced that it’s morally optimal. We can still agree that doxxing is not the worst crime in the universe, I suppose.
Meta: That’s very considerate of you. However, it is long past even unreasonable bedtimes here in Europe 🙂
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@all of the above: …honestly, at this point, I’d just like to know what the rules are. I’m not sure I care a whole lot if they’re even GOOD rules, I would just like a coherent set to exist.
As for Doxxing: http://slatestarcodex.com/2014/02/23/in-favor-of-niceness-community-and-civilization/
Osberend says, “Why? Shouldn’t those who violate the rights of others be publicly shamed and, yes, if the violation is severe enough, made to feel physical fear?”
Watson says, “The [redacted] bigots and losers who dug up and spread around Zoe Quinn’s home address and phone numbers were disgusting and wrong. They did it to frighten Quinn and give teeth to the people who were threatening her life, all because Quinn made a game they didn’t like and was accused of sleeping around by her ex-boyfriend.”
…In short, you are not going to be able to get everyone to agree on when Doxxing is justified and when it isn’t, so what you’re actually going to do is create an everlasting gyre of blood feuds. It would be super satisfying if vigilante justice actually worked. It would also be super satisfying if we could just shoot all the rapists and the problem would be solved. Real life doesn’t work that way.
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@Nita: Well, yay for at least partial agreement.
@anonymousCoward: I think my position is not really that of either side of that debate:
Andrew says that you should escalate to the maximum level you’re capable of against anyone with whom you have a serious conflict, and should be willing to use even intrinsically bad methods, such as lying to the public, for this purpose.
Scott says (if I’m reading him correctly) that you should not escalate at all unless you have no choice, and (secondarily) that you should not use direct physical violence except in response to direct physical violence.
I say that you should escalate proportionately* when someone you are having a conflict with does something that violates your rights, and that physical violence is an acceptable response to some rights violations that are not physically violent, but that there are some methods that are intrinsically bad, such as lying to the public**, and those either should not be used, except perhaps in a true emergency.
I think that this the difference between Scott’s position and mine is at least partly due to our conflicting basic moral approaches: He is a consequentialist who says “If you retaliate excessively hard against your enemies, they’ll do the same to you, and that’s bad.” I am a virtue ethicist who says “It is noble and virtuous to retaliate against the unrepentant violators of others’ rights, and courageous to do so even though it invites (wrongful) retailiation in turn.”
*Which is not necessarily to say at a ratio of 1 or less.
**With, I suppose, a caveat that this may be acceptable if the only people for whom your lies have relevance are those who are themselves guilty of committing or seeking to commit rights violations, e.g. it is fine in Nazi Germany to publicly lie that you are not concealing Jews in your house, since the only people to whom that is relevant are those who are seeking to wickedly seize concealed Jews.
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Here’s my experience with drinking. One drink is enough to make me more gregarious than I would be otherwise, but that’s all. On my second or third drink, that gregariousness will probably become noticeable to me in the first person — that’s the state I would call “buzzed” or “tipsy.” I talk a lot more, sit or stand closer to people, and worry less about embarassing myself. I might feel a tiny bit lightheaded, but I don’t notice any other physical effects unless I get on my bicycle, in which case I can tell that my reaction time is a bit slow and it probably wouldn’t be safe for me to drive a car. In this condition my decision-making capacity is basically still normal, and I can definitely consent.
Around my fourth drink, depending on the timing, how much I’ve had to eat, etc., I get a distinctive feeling in my head together with a sense of partial dissociation — that’s the feeling I call “drunk.” If I roll with this, I start to act with much less of the delay that’s usually associated with decision-making. Without thinking too much about it, I’ll stay up late, spend money on food, do silly things I don’t usually enjoy. At the same time, my coordination starts to suffer: I get worse at games, I’m more likely to spill things, etc. BUT: I can make an effort to pull my focus back when something has serious consequences: is this situation dangerous? Do I want to have sex with this person, and are they consenting to have sex with me? Using that intentional focus, I can make close-to-clear-headed decisions, and in the early stages I can also e.g. handle a sharp knife safely. I usually only maintain that focus for brief periods, but if someone else is in trouble, I can hold on to it pretty indefinitely in order to take responsibility and care for them. Because I have this ability, I can still consent while I’m drunk — but I don’t trust that other people can. I won’t sleep with a new person for the first time while they’re drunk unless they communicated that intention earlier in the night.
If I keep drinking, my coordination gets steadily worse and the threshold of seriousness required to get me to pull it together gets steadily higher, although I’ve never been so drunk that I couldn’t focus to make ethical decisions, e.g. about sex or driving. Six to eight drinks in a few hours will make me sick to my stomach. I’ve never passed out drinking or been unable to remember. I won’t sleep with anyone, even an established partner who insists they’re consenting, if they have trouble walking, can’t carry on an intelligent conversation, behave really erratically, or seem nauseous.
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It was interesting to read this rerun the same day Volokh posted this:
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/11/78-year-old-iowa-legislator-is-prosecuted-for-having-sex-with-his-wife-who-was-suffering-from-alzheimers/
From what I gather, in many cases, two dementia patients may be seen as having the right to consent to have sex with each other (or not), but it’s not always clear if you have the right to consent to have sex with your partner after you enter dementia. (Might be a good clause for a living will, seriously).
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So, 50 or so comments in, I’m trying to make sense of what I’m reading, and I’m pretty confused.
I read the “consent as a felt sense” post, and found it very informative, but it seems in this case we’re talking about rape in the context of what makes a person a rapist, ie what behavior we’re going to prosecute and censure publicly. If I’m wrong about that, I’m open to correction.
It also seems pretty clear that we’re talking about a state of inebriation where you can still interact with those around you, right? As opposed to complete incapacitation?
>”People who think someone might be saying tipsy sex is rape, they probably aren’t!”
Several people have mentioned that they have been told explicitly this by authority figures of varying degrees of seniority. Protagoras put forward that this might just be the telephone game as policy filters down from on high, but the case of “CB” described in this article:
http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html
….seems to indicate that it’s actual policy at the University of Michigan, for one. So at least some people actually are saying that “tipsy sex is rape”. I find it pretty unlikely that the University of Michigan came up with this policy out of the blue, so it seems probable that someone lobbied for it, and my guess would have been that these people lobbying for it came from the feminist camp. If it is coming from feminism, why are so many feminists in this thread claiming that they’ve never heard of this crazy talk? If it’s not coming from feminism, where is it coming from?
Could someone provide some examples of policies that address alcohol and sex in a less egregious fashion and still fit the title of “drunk sex is rape”?
Lots of people are talking about their personal experience with alcohol. The consensus I’m seeing is that there is no clear definition of “tipsy” or “drunk”. if “drunk sex is rape”, then it seems pretty important to have a hard definition for “drunk”, and neither the cited article nor this one nor the comments seem to have provided a clear picture of what this might be. Is this possible or practical to do?
Also, however you slice it, shouldn’t this be a pretty clear-cut argument for ending drinking/party culture pretty much nation-wide? Or at least in the university system, where drinking is unarguably linked to sexual activity? That conclusion seems obvious to me, but I don’t actually see anyone else drawing it. When I was reading up on the Rolling Stone rape allegations, I saw plenty of people arguing that the frats should be torn down, but not many arguments for, say, a blanket ban on alcohol on campus. I’m pretty curious as to why, as if “drunk sex is rape”, I really can’t picture how one could condone any part of modern collegiate drinking culture.
Rash92’s point about cheating is also pretty troubling, and I don’t really see a way around that one either. Does anyone else?
If anyone has any thoughts, I’d definitely be interested to hear them. Right now, I’m pretty stuck.
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Isn’t it already illegal to drink until the age of 21 in the US? It doesn’t seem to have helped much. In fact, it might be one of the reasons why shady stuff (allegedly) happens in frats: students break the law by drinking or providing alcohol to younger students, and then feel compelled to cover up and rationalize any consequences.
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few colleges actually make any serious attempt to enforce the law. My point is that if “drunk sex is rape”, the frats shouldn’t just be shut down, organizing a party of that nature should probably be a felony.
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@anonymousCoward: Really, the message isn’t “drunk sex is rape,” (even if those are the words used), it’s “drunk sex is rape if one party [in practice, almost invariably the woman] subsequently decides that it was rape.”
This is a particular species of a broader attitude, which I would summarize as follows:
Therefore, under this view, students throwing a “get drunk and fuck” party aren’t planning rape, they’re just planning something that might or might not be rape.
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Where are you getting this from? I think Ozy and some others in this discussion support treating anyone who feels raped with compassion (e.g., not calling them a liar and not excluding them from your social circles). I haven’t seen anyone here advocate imprisoning people on the basis of retroactive withdrawal of consent*. Have you?
Tangentially, I do think it’s possible to be raped but not realize it at the time: here’s an example.
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* Actually, when an ex-BDSM couple proposed that consent could be withdrawn later (a pretty extreme idea in any community I know of), Ozy argued pretty forcefully against it.
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@Osberend: I think Ozy (and probably also Watson) is explicitly not making that argument. If you read the “Consent As A Felt Sense” analysis, they state clearly that they’re willing to accept a subjective definition of rape in all circumstances except the ones involving the actual “perpetrator”. That is, that the label of “victim” should be freely granted, but the label of “rapist” requires due process. (If I got any of that wrong, someone please correct me.)
Again, this post seems to be arguing that:
a. There is a distinct level of drunkenness past “tipsy” and short of “total incapacitation” where expressed consent is no longer valid, and that
b. if you have sex with someone who is past this level, you are a rapist by the legal definition, the same as if you’d had sex with a passed-out stranger, or cornered someone in an alley.
(Obviously the victim is free to not press charges, or even free to not consider it rape, but I think we are talking about the legal definition. Again, anyone feel free to correct me.)
If that is the case, “get drunk and fuck” parties are very obviously designed to facilitate rape on a large scale, and we should probably be doing something about that.
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@Nita: I’m not sure if you’re responding to anonymousCoward or to me; if the latter, I’m getting my perspective on this from conversations with a substantial number of (mostly but not exclusively undergraduate) anti-rape activists at a major university. To be clear, I don’t think they have a consciously held position that retroactive withdrawal of consent from 100% platonic-ideal-of-enthusiastic-consent sex results in the other person being a rapist; rather, I think that they think that any sex where [any of an extensive list of “coercive” (defined as anything resulting in any emotional pressure whatsoever) or otherwise allegedly consent-invalidating circumstances, including but not limited to the ingestion of any quantity of alcohol, however small] is true is at least potentially rape, and should be viewed as actually rape if a “survivor” decides that it was.
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@osberend
So, do you agree or disagree with the following?
(1) Currently, we have a huge problem of rape being extremely hard to prosecute — because of course most rapists are going to present their actions in the most positive light, and their victim being the only witness makes proof “beyond reasonable doubt” very unlikely.
(2) One thing that would help is making rape and non-rape easier to tell apart from the outside, both to witnesses and to people trying to reconstruct what happened during an investigation.
(3) It’s not unreasonable to expect everyone to adjust their habits and preferences a little, if this small adjustment substantially helps reduce the amount of suffering due to rape and other badsex.
(4) Not applying pressure on potential partners, foregoing opportunities of sex when the circumstances make consent questionable, and communicating about consent more explicitly are small adjustments.
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I agree with (1) and (2). I have mixed responses to (4), which I will get to in a moment. I either disagree strongly with (3) or think it’s true but irrelevant, depending on how you mean it.
If you mean that saying (call this 3a) “you should, morally, make small adjustments xyz, if doing so reduces the suffering due to rape [leaving aside other badsex, since it complicates things]” is reasonable, then sure. I’m not convinced that making these adjustments will have that result, for various reasons, but the bigger issue is that what’s in contention here is more than just making moral claims.
If, however, you mean (3b) “labeling failure to make small adjustments xyz as a [quite major!] rights violation (whether legally or just morally), even though it is not, is not unreasonable, if doing so reduces the suffering due to rape,” then I disagree emphatically. I am a virtue ethicist, not a utilitarian, and I believe in liberty as an end goal.
As for (4), it depends on the circumstances. Communicating about consent more explicitly is a small adjustment in my view (though in practice, I don’t think it’s a small adjustment for everyone), but I don’t think I’ve been arguing against mandating fairly explicit communication—if you think I have, please let me know where.
Not pressuring people at all is not a small adjustment in the least, given that it means the following (which I’ve had multiple people explicitly argue to me): If (a) I have asked a romantic partner for sex act X before and they have declined, and (b) I have since concluded that I need X to be satisfied in a relationship, so that I cannot stay in this relationship if I don’t get X, then I am morally (and should be legally!) obligated to simply break up with my partner, without offering them the opportunity to decide whether they’d prefer to do X in order to make the relationship work. Because if I give them that opportunity, then I am pressuring them, pressure is coercion, and coerced sex is rape. So I should be legally forced to impose one outcome (a breakup) rather than giving them a choice between that same outcome and another (their doing X with me), so as not to violate their supposed rights!
I would agree that forgoing sex when circumstances make consent questionable is also a reasonable adjustment, but again, where have I opposed that, under a sensible definition of consent?
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@osberend
I’m glad there’s so much we can agree on! I expected a different emphasis in your objections.
Shouldn’t being a virtuous person be your end goal? Oh well, let’s get back to rape…
I think (3b) would bring more harm than good, so we’re in agreement on that.
And the nagging/blackmail issue is what you’re worried about in (4). I sympathize with activists’ attempts to raise awareness of unhealthy patterns in intimate relationships, but I don’t think there’s a way to cleanly identify such a pattern in a single event. After all, the law and even university policies are heavy-handed tools (a bit like internet mobs in this respect), so we should be careful about wielding them.
So, how about this: as a personal policy, try not to make your partner(s) feel trapped, and watch out for unhealthy developments in your own and close friends’ relationships. If you see someone trying to get out of a bad relationship, be kind to them. And if you’re OK with that, we can stand united against both rapists and the unreasonable people who would legally compel you to break up without talking.
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I believe in both liberty and being a virtuous person as end goals*, or at least reasonable approximations thereto. Possibly that means that I’m not a pure virtue ethicist, but primarily a virtue ethicist with a lower level of consequentialist admixture. Or it just means that I see holding liberty as an end goal as virtuous—which, if it’s the only reason I hold it as a goal, makes it technically an instrumental goal, but arguably one that’s close enough to being an end goal to function similarly for most practical purposes. I suspect that both of these are at least partially true.
I’m confident that I have a better grasp on my own moral logic than most people do, and I think I do a better job of being consistent than most people. Still, I freely admit that there are certain areas where I’m not entirely sure what is actually a primary moral intuition and what is actually a proxy for something more fundamental. While I think that this is a good reason for further introspection, I don’t think it’s in general a good reason to change my views in the absence of that introspection reaching a conclusion. One nice thing about this approach, and (in particular) about virtue ethics that doesn’t try to derive all virtue from a single axiom, is that it fails gracefully: If I have a correct intuition about the nature and moral value of courage, but an incorrect intuition about the nature and moral value of temperance, then my character and conduct may be vicious in matters pertaining to temperance, but will still be virtuous in matters pertaining to courage**. If I ignore certain (or all) moral intuitions insofar as they conflict with some central one, and that one proves to be false, then that is a much greater disaster.
I think we’re largely in agreement on the actionable issues here, as regards rape. So that’s nice.
*Arguably being a virtuous person is itself a collection of end goals; I’ve never really been satisfied with Aristotle’s attempt to argue that all virtue can be reduced to a single principle, of following the golden mean. Given that, adding one additional, non-virtue end goal need not greatly change the general character of the ethical system, provided that the weight attached to the additional goal is not excessive.
**I’m quite aware that Socrates, among others, would disagree with this statement. I still believe that it is correct, so far as it goes: Heydrich in his open car, stopping to do battle with his (initially) unsuccessful would-be assassins was vicious in many ways, but his courage was still a virtue.
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Most people have a different definition of drunk to the legal one I think. I certainly do. If I drink 4 pints of beer over the course of an evening, I am going to be more than “tipsy”, but I won’t be drunk according to the legal definition. If I drink a bottle of whiskey I’ll be drunk according to the legal defintion (and probably very ill).
It’s not surprising that men feel like a bunch of mutually consensual experiences are being redefined as rape, and that they feel scared/threatened by it.
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It feels like whether rape occurs is very context dependent.
Consider 2 scenarios:
1. An 18 year old who is not used to drinking goes to her first college party. A guy keeps refilling her glass with very alcoholic punch. Later when she is barely able to stand he takes her back with him and they have sex to which he thinks she said yes, but she didn’t appear to enthusiastically consent to.
2. Two 30 year olds who already know each other spend the evening in a pub drinking quite heavily. She suggests that they go back to his house, and he’s very happy to. When they get back they have more to drink and eventually they have sex to which they both appear to enthusiastically consent, despite fitting most definitions of drunk. They are both happy with what’s happened in the morning and agree to meet again the next week.
Morally, the first scenario feels like rape to me (and it’s legally rape too I think). The second scenario doesn’t seem like rape at all. I’m not sure whether people want to criminalise the second scenario to make the first scenario less likely to happen.
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I expect the obvious response is that the second couple might not fit the legal definition of drunk. However, they have been drinking very heavily and I expect at least some feminists would say that people can’t consent after that much alcohol.
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In fact, I’ve spoken to multiple feminists who’ve asserted that people can’t consent after any alcohol.
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On (1), I would say that it depends. First, did he deceive her as to how much alcohol was in the punch, or as to how much she was drinking (e.g. by refilling her glass when she wasn’t looking and/or lying about how much he added)? If so, then that alone is crime enough (morally) to merit his death if she wishes it; whether his subsequent actions constitute further crime or merely aggravation of the original crime is almost beside the point.
If he did neither of these things, then second, did she in fact (a) understand his question, (b) form an uncoerced affirmative decision, (c) communicate that decision? If so, then consent existed, and his conduct is therefore not a violation of her rights*, and hence, not rape. If not, then consent did not exist, and his conduct was rape.
On (2), there absolutely are such people (I know several), and they are tyrants. Tyrants with good intentions, perhaps, but tyrants nonetheless.
*Provided, of course, that he did not continue after she communicated a retraction of consent, or after it became evident that she was in a state in which she would not be able to communicate such a retraction.
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Really? If your teenage sibling got a friend drunk as a “joke”, would you kill them upon the victim’s request?
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Teenagers complicate the matter, because their brains aren’t fully developed, so no. Even if it were a competent adult though, I would not do it in the situation described, but I might* judge that they had the right to do it themselves or to have someone else do it; there are plenty of things that I think are justified that I for one reason or another will not myself aid.
*Intent is perhaps also relevant, but I’m still mulling over whether and how. I freely admit that I sometimes declare things and later conclude that I was in error; indeed, declaring them can help in the discovery of error, by encouraging those who disagree to challenge them.
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I’m not quite sure how this system is supposed to work. Would there be an Official Killer Squad employed by a trustworthy third party who would decide which killing requests to fulfill? If you just leave it up to volunteers, it looks like a road to a world where more power gives you more justice, by design.
E.g., if your (adult) sibling’s victim is a popular football player, he and his friends beat the hapless joker to death. But if the victim is a weird sickly girl no-one likes, all she can do is cry herself to sleep.
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This isn’t a system I’m discussing, but a set of purely moral questions. To my mind “do I have the right, in situation X, to do Y” has nothing to do with the question of whether a societal system can be created which consistently insures that in situation X I am capable of successfully doing Y.
If you want to discuss actual practical implementations, then I am loath to create more capital crimes (in a legal sense) in a country that has made such a botch of capital punishment for murder as ours has. So I would say that wilfully intoxicating someone else without consent should be a serious felony, but not capital. Moreover, I think that rightful vengeance for a sufficiently serious violation of one’s rights should be an affirmative defence to a charge of murder (and a variety of lesser charges as well), albeit one with a strong burden of proof.
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Well, that seems a lot more reasonable, if somewhat vendetta-prone.
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What do you mean by “is rape.” I think this is a weird place in the conversation. To many people something being “rape” means that the appropriate action for society to take is to throw someone is jail for at least 5 years and maybe much longer. If one’s brain equates “rape” with “deserves a long jail sentence” then one might be skeptical of calling things rape. If one has a different understanding of rape then one can assess situations like these as rape without moral qualms.
I would refuse to serve on a jury so this is just a hypothetical thought. I consider the man in the punch story to have raped the girl. However I would not want him to be convicted of rape in the USA. At least not if the state is pushing for the usual sort of penalty for the convicted rapist. He did something pretty terrible. But he does not deserve to be thrown into the hellhole of the US prison system for years and have his life permanently destroyed. I would however support throwing him out of college or other less extreme punishments.
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Dear Ozy,
>First: “X can’t be rape because then I would be a rapist” is a colossally stupid argument.
There is a non-stupid version of it: “From the male angle we define a rapist as someone evil enough to deserve a very serious punishment. Someone almost as evil as a murderer. John is not evil enough. Therefore what he done is not rape.”
The problem is, Ozy, that your view is 200% victim-oriented. Men don’t look at it like that. We look at it like a case of prosecuting the perp. Not as a case of helping the victims trauma. And let me tell you one thing, I am not going to prosecute anyone purely based on how another person FEELS about his actions, because that is NO rational grounds for 5 years in prison.
Therefore you need to separate these two concepts. Rape-as-trauma, which is mostly the female angle, and rape-as-something-evil-enough-to-destroy-your-life-for, which is the male angle.
You are not bad at using empathy, so really try to get it – most men think about it as a prosecutor does, not as a doctor does. Try to understand this angle.
If you got that, then understand how bloody difficult the prosecutors case: for most other crimes, it is the act itself that matters, not consent! There is no (or in rare corner cases) consent and no-consent turning a legal action into theft, battery or murder. This can happen, you can call some bdsm stuff consensual kidnapping, but usually it is not a problem: if John has kicked the shit out of Jack and stole his wallet, it is non-consensual, period.
So a very serious crime, that can be turned in a no-crime by a simple yes, and that no-crime version happens for healthy young people several times a week and it is now more common for them than cooking is, is a very, very difficult case for the prosecutor, can you understand that?
So please, Ozy, feminists, have a bit of empathy for the prosecutor for whom it is very, very difficult to calibrate rape so that the punishment matches the amount of evil in the soul of the perpetrator! If you can do that you will understand the male angle.
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I.e. imagine everybody having consensual theft several times a week. Imagine it is normal that several times a week a friend of yours just snatched your wallet or purse or whaever you use and ran away with it while yelling: “I don’t have money on me, let me borrow a fiver okay?” and you yell back “okay!” and one day you are drunk or something and don’t remember this, you just cannot find your wallet or purse. And from my male angle, I don’t give a shit if you feel hurt or not, feelings are for women, my job is the masculine one: punishing your thief. Provided you have one. Provided you remember right. Provided the thief was really evil enough to deserve punishment. What if you lent your purse 10 times and now the guy was just assuming consent? Still wrong but evil enough destroy his life?
This is the male angle. This is the difficulty. Rape = someone was really, really evil and will get punished. Yet you don’t base your evaluation of rape on how the act demonstrates that the soul of the perpetrator is evil, like most crime does. You are entirely focusing on how the soul of the victim is hurt. That is, really, irrelevant.
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Discussing “the male angle” on rape without the slightest acknowledgement that men are victims of rape is a great way to annoy me and thus get banned. Which you are. Bye.
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[I’m not sure if replying to banned users is disallowed; if so, I apologize, and I will endeavor not to repeat my error.]
I’m not gonna touch your ultra-essentialist (and, as ozymandias has noted, male-victim denying) theory of a “male angle” on rape, beyond noting that it’s bullshit.
But there is one thing here that I do think is worth engaging a bit, which is the distinction you make between evil and harm. That’s good as far as it goes, but you completely fail to make an essential further distinction, between the evilness of an act and the (habitual) evilness of its perpetrator.
Not everyone who does incredibly evil things does so as a manifestation of their incredible malevolence. Some people do incredibly evil things because they just don’t, in that particular context, care enough about the wickedness of what they’re doing to overcome their desire to do it. So “John isn’t that evil” doesn’t really apply here, if what you mean by that is that John doesn’t have that much seething malevolence in him.
Now, you can say that making a choice to do an incredible evil makes the chooser incredibly evil, in the sense that they are now marked forever as having Done A Great Evil. And that’s reasonable, and might even be right. But evil in that sense is non-obvious, so again, “John isn’t evil and rape is evil, so John isn’t a rapist” doesn’t actually make sense in the way you think it does.
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If you’ll permit me to mansplain…
1. You are wrong about preconsent to drunken sex. It is not “obviously” ok. There are a lot of points if view that do not permit it. These most importantly include a lot of feminist legal scholars, and a lot of state laws. Seriously, don’t do this, you are playing with fire.
2. The standard for inability to form mens rea due to intoxication is much tougher to meet than the standard for inability to consent. The former usually requires you to be literally unable to control your body enough to avoid committing the crime. The latter is purposefully vague and up to a jury, but seems to encompass someone who is sloppy-drunk but not comatose. So yes, two people can legally rape each other in many jurisdictions. Maybe all but my knowledge isn’t that comprehensive.
3. The reason critics of feminist rape reformers attribute the “all drunk sex is rape” position to them is that got any possible evidence you can offer that someone wasn’t that drunk, they’ll counter by asserting that they still could have been too drunk to consent. Video of enthusiastic participation in the sex? They wouldn’t have done that sober. Video of alleged victim conversing coherently prior to the act? Blackout drunk people can do that so who cares. The list goes on. Eventually you find revealed preference more revealing than stated opinion.
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1. It is obviously okay, to anyone who is not a tyrant or a supporter of tyrants. It is not uniformly legal, because our government is full of tyrants at all levels.
2. This varies from state to state, and is not the case where I live. Moreover, anyone who thinks it remotely legitimate for the state to propose that by a single act, two people commit the same crime against each other, is a tyrant or a supporter of tyrants.
3. What people would have done sober is irrelevant; what is important is what they did. Blackout is also irrelevant, except insofar as it changes what they did.
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Mind telling me what state that is? Bet you’re wrong.
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Michigan. The relevant family of crimes is “criminal sexual contact,” and the relevant criterion is “The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.” Here are the corresponding legal definitions:
“Mentally incapable” means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.
“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent. [emphasis mine]
“Physically helpless” means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act.
NB: I actually think that the Michigan definition of CSC is underinclusive, since as written, it’s basically a (heavily) modified no-means-no standard, rather than a yes-means-yes standard.
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Tangent: Does anyone know whether WordPress (or this blog specifically) doesn’t like unordered lists? This is the second time I’ve entered
<ul><li>text</li>
<li>text</li>
<li>text</li></ul>, which I think is correct usage (let me know if I’m wrong), and just got paragraphs.
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The mens rea in question is “knows or has reason to know.” You originally argued that this was obviated by the intoxication of the accused. Nothing you have quoted has anything to do with that.
The definitions you are quoting deal with whether sex with an intoxicated person is rape in Michigan if they got drunk on purpose. Michigan is unusually permissible in that regard (I think 8 states follow this rule and the rest do not). This may make you correct on your broader claim that in your state two drunk people can have sex without legally raping each other, but not as to the reason.
Regarding mens rea being negated by intoxication, Michigan will not even permit you to argue that unless the intoxication was involuntary.
http://law.justia.com/codes/michigan/2006/mcl-chapters-760-777/mcl-768-37.html
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What remark of mine did you read as indicating that mens rea is invalidated by intoxication? I’m pretty sure I never said that. Are you getting that from my point (2)? If so, my point was not that the specific event of the state declaring two people guilty of the same crime, by the same act, against each other, is tyranny, but that any standard for what constitutes crime that would lead to such a declaration is tyrannical.
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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?
“Fucking a drunk is rape.”
Or, if people quibble and there’s room on your bumper,
“Fucking a drunk drunk is rape.”
‘Tipsy’ is a non-central form of ‘drunk’, but try telling the Prosecutor, “not drunk, just tipsy.” However, ‘a drunk’ is pretty central.
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How about “fucking someone who doesn’t actively consent is rape” and leave it at that? Or, if one feels the need to elaborate: “fucking someone who doesn’t understand what you want, make an uncoerced choice to do it, and clearly communicate that choice . . . is rape.”
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Try putting that on your bumper sticker, or getting to finish saying it before people fall asleep.
Unless they’re making a list of words to quibble about later.
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“What loose approximation to this reasonable position will fit on a bumper sticker/on a protest sign/into a TV news soundbite/into a single tweet” is a decent candidate for the single most destructive political practice that cuts across all political lines.
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Reblogged this on Autism Candles.
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