A post over at IHM’s blog led to an interesting discussion on whether or not consent given by a woman when she’s drunk is rape. Reading through the comments, it seemed to me that most were of the opinion that if a woman is drunk she’s not capable of giving valid consent and that sex on the basis of that consent is rape. While I certainly feel that there’s a point of extreme drunkenness where a person is unconscious and is incapable of even being aware of their surroundings, I don’t think consent is automatically invalid if one of the parties is drunk. I think we should consider the following:
The Quantum of “Drunkenness” is Important
A person can be drunk and still be fully aware of their surroundings. There are thousands of pick up bars all over the world where men and women initiate sexual conduct with each other over drinks. They can be completely sozzled and go home together. Clearly this is not a black and white situation. On the other hand, I’ve seen people drink themselves into unconsciousness where they’re dead to the world. Clearly when a person is in this state, the question of consent whether valid or invalid is moot. I don’t think anyone is arguing even for a moment that it’s ok for a man to have sex with a woman when she’s in such a state.
But if she’s conscious, then I think consent should be treated as valid. Again, “No” means no. This is not a discussion about that. It needn’t be verbal either. Any indication that the person doesn’t want to have sex – verbal or non verbal – is an immediate no no. So I’m not for a minute suggesting that the woman has to explicitly say no. If she resists even a little bit, then that’s enough.
Now some might say that it’s impossible to verify the facts about what exactly happened etc. But this is similar to those who oppose laws on marital rape by saying that there’s no way to prove what happened. Let the laws come first and define what is right and what is wrong. We can figure out evidence later. Maybe there was a camera recording or whatever. It’s not important.
But if the woman gives no indications of unwillingness verbal or nonverbal, then I think that should be enough. It may be a mistake and bad judgment on her part. But that’s not the same as rape. And here’s why.
Why take Sex so Seriously?
I think much of the debate about valid or invalid consent when drunk comes about because we still make such a big deal out of sex. So it was a mistake. Big deal. Here’s how I visualize an ideal conversation between a woman who had sex when drunk and the guy in the morning:
Woman: Did…did we have sex?
Guy: Yeah. We did.
Woman: Oh crap. *mutters to herself*. Look..umm…can we like..pretend this never happened?
Guy: Right. Ok!
It may be a mistake and bad judgment on her part. But that’s not the same as rape
This to me is the healthy way to go about it. She made a shit decision and had sex with someone. Again, I’m assuming she didn’t lose consciousness and never gave any indication that she was unwilling. It sucks but well no big deal, no one is hurt and the two of them can just go their separate ways. There’s no need to call it rape and make such a big deal out of the whole thing. It’s not as if the guy forced himself on her right?
People are Allowed to Make Crappy Decisions when Drunk
I’m not aware of any law that invalidates consent for other actions when drunk. You can go out and buy a car when drunk no matter how expensive its, you’re allowed to vote, even get married, and you’re not immune from the consequences of your poor judgment. If a person gives consent to sex when they’re drunk, that’s just another mistake and they need to deal with it. It doesn’t automatically render consent invalid and make it rape.
Just in case someone’s thinking that I’m saying the woman deserved to get raped, let me clarify that I’m denying that it was rape in the first place. The consequences here are embarrassment that you had sex with a co worker or a friend or whatever. I’m not saying she was responsible for getting raped.
So in short (too late!), I don’t think it’s enough to say “She was drunk and so there was no consent or her consent was invalid”. In my opinion, if person was an adult then consent is valid whether drunk or not. It might the be wrong decision, it may be ill advised, or embarrassing or just plain stupid. But it’s not rape.