I’m afraid my sons will be rapists. Or at least accused of being rapists. I don’t think they will actually intentionally rape someone but I am terrified that they will be accused of it. I should point out that I don’t have sons yet. Or daughters for that matter. I’m not even in a committed relationship that might lead to kids any time soon. But that doesn’t stop me from thinking about what I’ll need to tell my children about rape, about sex, and about those two things when alcohol is involved. The problem is, however, that I just don’t know what I’ll tell them.
Recently, I have seen an increase in conversations about what constitutes sexual consent when alcohol is involved especially in regards to rape on college campuses. This is an extremely important conversation to be having but I’m worried about the direction this conversation is taking and I’m worried it’s going to lead us down the wrong path.
In September 2014, the state of California signed bill SB967 into law. This law states that a person cannot give consent if they are intoxicated. The University of Notre Dame’s McDonald Center for Student Well-Being states that “agreement given while under the influence of alcohol or other drugs is not considered consent.” It concerns me that states and colleges have enacted laws and policies that state that there can be no consent when there has been drinking.
Technically, since such policies state that no one can give consent after they’ve been drinking, it means men and women are raping each other when they have sex after consuming alcohol. Practical application, however, seems to overlook the fact that men also can’t give consent after drinking. For example, the San Gabriel Valley Chapter of the National Organization for Women, states on its website sgvwNOW Project, that “under the Affirmative Consent Standard, a drunk woman cannot consent to sex, because her judgment is incapacitated by alcohol.” According to indyweek.com, in May 2014, Duke University Dean stated that “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” Somehow this good intentioned but flawed policy has been warped into a viewpoint that only women can’t give consent when they’ve been drinking. As a result, men who have been drinking and have sex are rapists and women are constant victims. This is a really dangerous trend and a pretty serious double standard.
When a man gets drunk and drives, he’s held responsible. When a woman gets drunk and drives, she’s held responsible. When a man gets drunk and vandalizes property, he’s held responsible. When a woman gets drunk and vandalizes property, she’s held responsible. When a man gets drunk and has sex he’s held responsible. When a woman gets drunk and has sex, the man is held responsible. Wait, what? There seems to be an error in the pattern here. Why, in this one instance and for this one gender, is all responsibility removed after the consumption of alcohol?
Now, I want to be clear that I am not talking about rape that occurs when one individual decides to perpetrate a sexual act with a person who is unconscious or who is clearly saying “No.” That is rape and needs to be reported and addressed as such. I’m talking about calling sex “rape” when two intoxicated but lucid people decide to get it on. Almost everyone I know has engaged in sexual activity while under the influence of alcohol. So by this definition, almost everyone I know has been raped or sexually assaulted and almost everyone I know is a rapist or sexual assaulter. By this definition, everyone who has ever had sex with their boyfriend or girlfriend while they were intoxicated has participated in sexual assault. Every married couple that has copulated after drinking has sexually assaulted each other.
And this doesn’t just apply to frat parties on college campuses. This also applies to all other situations in which individuals consume alcohol and get frisky. Going out on the infamous third date with your newest romantic interest? Well, make sure you don’t meet up for drinks, because if you have sex, it’s rape. Going on a tropical vacation with your SO? Make sure you don’t have sex after imbibing all day at the all-inclusive bar. You would be raping your girlfriend or wife. Meet someone at the bar who isn’t drinking? Be careful, she might have been drinking at the last bar she was at. You’re probably a rapist if you take her home. If we say that a person can’t give consent when they’ve been drinking in one situation, then that applies in all situations regardless of who is involved or what is said.
Not only is this ludicrous but it dilutes the meaning of sexual assault. Songs like Beyonce’s “Drunk in Love” or P.Reign, Drake and Future’s “DnF” are prime examples of how much our society likes getting drunk and having sex. By defining sex while drinking as rape, and by doing so in a culture where both women and men find it enjoyable to do so, you take away meaning from the word rape. Sexual assault becomes meaningless because its application to what many view as harmless or desirable situations trivializes what rape and sexual assault really are. Instead of stopping rape from happening, it normalizes rape.
It terrifies me that some of my male friends will have sex with someone who is intoxicated, believing it to be consensual, and will end up being accused of raping someone. This isn’t a minor accusation. It’s a life-ruiner. I’m talking about suspension from school, firing, and prison to name a few life-ruining outcomes of a false rape accusation. People make mistakes when they are drinking, but in most cases, they wake up and say to themselves, “That was really stupid. I’ll never do that again.” Or “That really made me feel bad about myself. I won’t do that again.” They wake up and they take responsibility for their actions and they change their behavior in the future. In effect, they live and they learn. As Jamie Foxx says, “Blame it on the goose, got you feeling loose. Blame it on Patron, got you in the zone. Blame it on the a-a-a-a-a-alcohol.”
I think this focus on removing responsibility from women who engage in sexual activity while intoxicated creates a dangerous environment in which there is little accountability for one’s actions. Instead of waking up and reflecting on their behavior, women can wake up and blame someone else for their behavior. They won’t have to feel bad about what they chose to do or how much they drank because, instead, it can be someone else’s fault. Someone else can take responsibility for what that woman did. She can be a victim instead of a perpetrator. Instead of living and learning, they’re living and blaming. Couple that with a society that says women aren’t responsible for their intoxicated actions and you have a recipe for false accusations and ruined lives.
And how do accused individuals defend themselves if this happens? In the California bill SB967, the accused is now responsible for proving that sexual assault did not happen instead of the accuser being required to prove that sexual assault did happen. What happened to innocent until proven guilty? Again, such laws, and any policies like them, create a dangerous environment for false accusations. And I’m not the only one who thinks so. In July 2014, Harvard University enacted a new Sexual Harassment Policy. In October 2014, the Boston Globe reported that 28 Harvard professors asked Harvard to rewrite the policy because its established procedures “lack the most basic elements of fairness and due process” and are “overwhelmingly stacked against the accused.” According to these professors, the policy is “entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs.”
What happens when two equally intoxicated individuals have sex and the next morning the woman decides to accuse the man of raping her? What if the woman was saying “Yes” and was enthusiastically encouraging the interaction but still calls it rape the next day? Who can prove what was said? Who can prove that he wasn’t passed out drunk? It becomes a “she said rape, he said not rape” situation. What if the man was black out drunk and doesn’t know what happened? Then it becomes a “She said rape, he said…nothing” situation. I realize this is a complicated topic and that it is extremely difficult to determine what actually happened and who, if anyone, is at fault. But that’s exactly why I think this definition is doing a disservice to the issue. Instead of trying to find out what actually happened, the default becomes “Well, she was drinking so he raped her.” It’s taking the easy way (and dangerous way) out.
This may make me sound like I’m not a feminist or that I’m not supporting women. In reality, I am 100% a feminist. Feminism, as defined by Chimamanda Ngozi Adichie in her Ted Talk and by Emma Watson in her UN speech, is “a person who believes in the social, political, and economic equality of the sexes.” Men and women should be treated equally in all things, including who is at fault when two drunk people have sex. We need to make sure that as we stand up for women we are not trampling on men.
Why do these laws and policies seem to assume that the man was an aggressor when two people engage in sexual activity? According to the Rape, Abuse & Incest National Network, 1 in 33 American men have experienced rape or attempted rape in their lifetime and 2.78 million men in the US have been victims of rape. Many experts indicate that this estimate is too low because there is so much stigma regarding men who are raped and it is, therefore, most likely vastly underreported. So why does this warped rule about consent only seem to apply to women? Doesn’t this increase stigma for men and impact reporting of rape by men? Are men somehow incapable of being raped when they are intoxicated? Are women less capable of making rational decisions than men when they’ve been drinking? Are men more aware than women of their surroundings and better able to use good judgment when they’ve been drinking? Now that I think about it, this societal twist that women can’t give consent is a little offensive.
This doesn’t just bother me on a societal level but it also bothers me on a personal level. I really don’t appreciate being told that because I was drinking I haven’t given consent in any of my interactions. I don’t appreciate being forced to be a victim. When you say that consent is not possible where alcohol is involved than you say that I have never given consent and that I am therefore a victim. Well, I don’t feel like a victim. I feel like an individual who has made both good and bad choices while drinking. And I feel like an individual who has come to terms with and taken responsibility for all of those decisions. Instead of protecting me, this definition has stripped me of choice and trivialized my intentions.
Now, I know that you aren’t supposed to point out a problem without also posing a solution. Well, I’m sorry but I don’t have one. The only thing I know is that stripping individuals of the ability to consent after they have been drinking does not solve the problem of rape on campuses. I think it causes some serious problems of its own. Maybe we need a new term for what happens when two people drink and have sex that is neither considered sexual assault nor is it considered particularly admirable behavior. I’ll propose “Sexing Under the Influence” or SUI. Maybe we need mandatory sexual assault awareness programs in high schools. Maybe someone much smarter and more creative than I can come up with a solution. But no matter what happens, we need to steer away from this troubling definition and application of consent.
While we figure out what to do about this complicated issue, let’s focus the conversation on the “No Means No” and “Consent is Sexy” campaigns and let’s teach individuals not to be afraid to say “No.” Let’s stop walking down this path that allows for decreased accountability and that trivializes what rape really is. Let’s focus on educating both men and women about what consent should be. Let’s focus on helping individuals make more informed and better decisions when it comes to sex and alcohol.
In the meantime, what will I teach my sons someday so that they are never accused of raping someone? Do I tell them to never drink and have sex? Do I tell them to never have sex with someone who has been drinking – no matter how little? Do I tell them that they should only have sex with someone that they have been around for several hours so that they can witness for themselves that their SO or potential partner wasn’t drinking? Do I tell them to become priests to avoid this situation all together?
And what do I tell my daughters? That if they’ve had even one drink their judgment is impaired and their ability to make sound decisions does not exist? Do I tell them to never drink at all? Do I tell them not to drink before or during a date? Do I tell them that if they make a bad decision while drinking they don’t have to take accountability for it?
Thank god I’m nowhere close to motherhood. I think I’m going to need some time to figure out the answers to these questions.