I love the folks over at SAFER, and you really ought to go check out this post.
In short, some guy wrote a really obnoxious opinion piece about rape for his student newspaper. (The jackass starts off by saying that rape is “controversial” — WTF?) Essentially, he was playing the How Far Can I Go Before It’s Rape? Game. Where’s the line in the sand? Can you please tell me the exact point at which sex that is incredibly ethically dubious technically turns into sexual assault? Consent is just so confuuuuusing. How can I knoooow? (psst: consent is when she says YES.) He also throws in a bit of “if the woman who was raped doesn’t call it rape then it’s not” . . . and fuck all the social conditioning that says women who have been raped are damaged goods and that what happened to them is their own fault. Also, ignore that using the word “rape” only to have your experience invalidated hurts more than if you don’t go out on that limb.
But in the middle of it all, he manages to let an inadvertent nugget of truth slip out. I can only assume that it was an accident. But there it is, and Ashley pounces on it and makes the excellent point that yes, sometimes definitions of sexual assault can go too far — and when they do, it hurts women and anti-rape advocates a hell of a lot more than it hurts the rapists. And while I don’t really think that this is an exceedingly common occurrence — in fact, the opposite problem is one that comes up a lot more — I’ve seen it enough that it needs to be addressed. So go read the post.
The Curvature 
I’m not so sure I agree with Ashley’s position. Of course there is no such thing as “grey rape” – the most idiotic euphemism I’ve ever heard. But there is a problem enforcing rape statutes. Consent to just too damn amorphous for juries to figure out after the fact.
Imagine that you have a jury of completely enlightened people and a judge that precludes all testimony of prior sexual history, questions that are intended to intimidate the witness, etc.
The facts are that they both had a few drinks – neither can remember how many. She says she does not recall consent to sex and was too incapacitated to fight him off. He says she didn’t say “no” (which, being a complete an utter misogynistic asshat he interpreted as consent)and was conscious.
So what can our perfectly enlightened jury do? Can you, on these bare facts, beyond a reasonable doubt that he committed rape as defined by most statutes? Probably not. Was she raped? Absolutely.
Why the dichotomy? Because as every feminist knows, the burden in a rape case is on the victim to prove she didn’t consent rather than on the perpetrator to prove she did.
So what BSU and other universities are trying to do is shift some of that burden. If you’re having sex with someone who is drinking, you’d better be damn sure they’re enthusiastically consenting because you do so at your own risk.
I hear Ashley’s criticism, that it makes it more difficult to help “traditional” rape victims. But the same could have been said 20 years ago of victims of date rape or marital rape.
Thing is, how can you have a one-size-fits-all policy that says that enthusiastic consent is based on having had or not had alcohol? This takes away the ability of women to say for themselves what enthusiastic consent is. I don’t drink often, so one large glass of wine will put me in a state where I can’t reasonably consent. But someone else might be able to handle a lot more alcohol and still have enough presence of mind to consent.
And, also, such a policy takes away from men, the responsibility to learn what enthusiastic consent is, as well as playing into right-wing stereotypes of men as brainless and being governed by their hormones.
Sorry, that was me. Gotta check what handle I’m using!!
I’m with GallingGalla — I think that it’s not shifting the burden to men, it’s taking it away by saying that they’re too stupid to know the difference between consent and non-consent.
And beyond that, I think that it simply makes people tune us out. I mean, I don’t believe that shit — why should I expect anyone else to? I remember reading something about talking to teens about sex, and how the scare tactics don’t work — you tell a kid that if she has sex without a condom she’s definitely going to get pregnant, but her best friend has had sex without a condom and she’s not. They know that what you’re saying isn’t true, and therefore don’t want to listen to the rest of it. This policy says that a person cannot consent after they’ve been drinking. But I’ve had sex while intoxicated more times than I can count, consented every time and was probably responsible for initiating most of them. I’m sure that I’m not the only one. If we start feeding the people who most need to hear the message a bunch of bullshit, they’re going to tune out and they’re not going to want to hear about enthusiastic consent, ability to consent, etc. because they already think that you’re fucking nuts.
And shouldn’t the message be that if you’re having sex at all, you’d better be damn sure they’re enthusiastically consenting? Though additional caution should be used when either party is drinking, the idea that you better be damn sure doesn’t change.
The (or perhaps more) issues.
1. In actual fact, I think all people are too damn stupid when they’re intoxicated to know much of anything and that intoxication erodes good judgment. Consider drunk driving stats if you don’t agree with me.
2. Enthusiastic consent is a dream, not a reality. Right now in the world today enthusiastic consent is not how your average person views sex vs. rape. You could not pass a law requiring enthusiastic consent and I doubt if you ran a survey you could get 20% of people to agree that enthusiastic should be part of a rape statute. This is not to say we should work towards it or advocate stridently for it…but rather, that in the interim we have to deal with the world as it currently exists.
3. Right now, as the world currently exists the hypothetical victim I described above has no recourse and no protection under the law.
1. Drunk driving is a problem for more reasons than just a loss of judgment — it’s about motor skills and ability to react quickly. For most people, having two beers is going to affect your ability to drive a hell of a lot more than it’s going ot affect your ability to make decisions.
2. I agree, but the standard that any person who is intoxicated to any degree cannot consent is also not a reality. And do you think that anymore than 20% of people would agree with it? Why should we work towards a shitty solution rather than the desirable one?
3. The victim technically does have protection under the law, and this rule doesn’t increase that protection. We’re talking about school policy, not legislation. In this case, it may be easier to get a school to reprimand a rapist, but he’s still not going to go to jail. Your scenario above is rape in the eyes of the law — the trouble is getting enough people to believe her to get a conviction.
Cara,
I think we’re coming from two completely different perspectives on how alcohol effects judgment. People knowing they’ve been drinking still get behind the wheel of a car because they don’t think they’re that drunk. They streak naked down trafficky road. They stand out on the freeway singing random songs. They pick fights with people 5 times bigger and meaner than they are. Indeed the stated purpose of many people when they drink is to reduce their inhibitions…i.e., suspend their better, more rational judgment. This is my recollection of drunken college parties.
I think we can create brightline rules that say if you violate them you’re asking for trouble. I agree that the way BSU has worded their consent clause is not optimal, but I see what they’re trying to get at.
But to the point…the hypothetical victim…under many state statutes would not have been raped as defined by the law since either (1) she did not indicate her lack of consent (see NY) or (2) he did not know that she was incapable of consent (see Mass.)
We can’t fix that law. The Mass rule was just upheld two months ago. But universities can create sanctions just like they create some sanction and provide their students with some protection.
I’d like to quibble on the drunk driving thing — I know people who have driven drunk and I can tell you that they will still make the same argument after the fact. I don’t think that drunk driving happens because people lose judgment when drinking, I think it happens because people have the poor judgment to drink when they know they have to drive in the first place. That’s a decision you make up front.
But that’s a minor quibble. I agree with you on most of the rest — but with those cases, we’re talking serious intoxication. The person drunk to the point of doing the things you describe is clearly in a different state than the person who has a couple of drinks and sits around laughing and telling stupid stories. There are levels of intoxication, and I believe that at many of them you can still fully consent. I’m guessing the point behind the law is that they don’t expect people to carry around a breathalizer — but it takes away the responsibility to gain enthusiastic consent, and that’s a lesson that carries over to situations where alcohol is not involved.
As for the Mass law, I’m pretty sure that you’re mistaken about that one. A court upholding the law doesn’t mean that it can’t be changed — it just means that it’s legally fine the way it is (even though in this case it’s clearly not). And in any case, I don’t believe for a second that a person can’t know that a sexual partner is incapable of consent, but that’s a whole other story.
My point is that of course universities can and should create sanctions to provide their students with protection — but I don’t think that this particular rule is helping anyone, and it’s only adding fuel to the bullshit “women lie about rape”/”she wasn’t really raped” fire. Though I have absolutely no belief that it would somehow increase false rape reports, I do know that it would increase the case for arguing that it has. I’m glad that the university is trying to do something, but they also need to do it properly in a way that actually reflects the nature of true consent.
(oops: I meant to say “I’m guessing the point behind the university’s standard is that they don’t expect people to carry around a breathalizer . . .”)
Err…my point was not that in general the law couldn’t be changed, but more specifically at this point in time people don’t want to change the Mass law.
Of course a person can know that another is incapable of consent…but that is a very vague test in its application. Three drinks is a concrete test. Unable to walk in a straight line is a concrete test. Incapable of consent? Not so much particularly when most people don’t know what “consent” looks like (i.e., the asshat above who thinks “not fighting” equals consent).
I’ve dragged more than my fair share of friends (both female and male) half naked and half conscious out of frat parties to know that frequently those involved are frequently not sober enough to negotiate the subtleties.
So here’s the question…if you were a university administrator dealing with the aforementioned problem, today, how would you craft university policy to deal with it?
Err…my point was not that in general the law couldn’t be changed, but more specifically at this point in time people don’t want to change the Mass law.
Fair enough.
As for your question, I think it’s an excellent and entirely fair one. And I’ve been trying to find time all afternoon/evening to get around to answering it, but have failed. I will try that again tomorrow morning.
No hurry of course. It’s not like I have an answer…other than “Make people not self-absorbed tools of the patriarchy and/or asshats.” Which is more of a mission statement than a policy!
I was more talking about how we try to prevent sexual violence than how we create policies designed to prosecute or punish offenders… Punishment in general has never really inspired me, though I think it’s one aspect of how sexual violence should be handled… I’m more interested in how we can change social norms, and I think we get taken a lot less seriously if we try to tell people things that just don’t pass the reality sniff test. If we tell people it’s rape whenever people are at all intoxicated, they know that’s not true. But if we tell people that the real test is that both people should be fully aware of what’s going on and be actively into having sex, it’s a lot harder for them to argue that we’re being unreasonable or unrealistic, or that it’s all just so confusing that they can’t possibly understand it.
Something I’ve learned from talking to survivors is that focusing on enthusiastic consent and asking them whether they said yes can help a lot. Most people have been asking them whether they said no, and a lot of them feel guilty for not protesting “enough” (actual quote: “well, I was kind of passing out and waking up, but I didn’t say no”) Switching the responsibility to the perpetrator makes a big difference, both in the survivor’s state of mind and in their willingness to have their attacker held accountable.
Agreed, Ashley. I think that the conversation kind of veered off into the justice direction — and Kristen may be entirely right that this was the point of the school policy — but I thought that you were coming from a prevention and education standpoint, and that’s definitely where I was coming from.
I also think that Kristen raised some interesting points, and as we know, justice for victims is very hard to come by. I guess that the question is how to reconcile to two — prevention/education and justice — without one undermining the other.
There were two things that made me bristle most.
First, the idea that it’s difficult to tell when there’s consent. Careful people take the time to make sure their partner is consenting. I’m married and we STILL make it clear whether this is just a little making out or if we’re going to have sex. When you know each other well, of course it’s easier to read each other and not have to feel like you’re making appointments to fuck. But what’s so hard about asking someone, “Do you want to have sex?” Straightforward communication is just not that difficult.
Second, the idea that if the woman doesn’t use the word rape it’s not rape. As I think you’ve probably said here many times, rape victims have a difficult time using the word rape, for the very reason that people will instantly start acting like you’re over-reacting. Personally, I find it hard enough to say sexual assault, and I usually end up saying non-consensual and then not saying sex because rape isn’t sex, it’s violence.
The alcohol thing seems to me like you can make it as simple as the consent thing. You can choose to simply never drive when you’ve had any alcohol. This keeps you from having to try to make a judgment call when you’ve been drinking. What we do is pick a designated driver before the first drink. Simple. In the same way, you can decide that you will simply never have sex with someone who is not your regular partner when you’ve been drinking or they’ve been drinking. I’ve been in a situation with a guy where I was drunk and he knew it and although we’d dated a few times, it was going to be our first time, and he said to me, no, listen, let’s wait for this until I can know you’re really sure. And you know what, the next day I was even more sure because I had so much respect for him for that.
Obviously I’m preaching to the choir, but I just want to add my agreement about this.