Is it Always Rape if the Woman is Drunk?

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.

What do you think of this post?
  • Agree (10)
  • You're an asshole (4)
  • Don't Agree but Interesting (3)

21 thoughts on “Is it Always Rape if the Woman is Drunk?”

  1. I agree with you for most of the part. But think of the consequences if an intoxicated woman mistakenly agrees to have sex with a man and gets pregnant (because proper contraceptive measures were perhaps not taken).

    Sex (without contraception) is something that has the potency to produce life and that’s why decision of having sex has to be differentiated from other decisions like buying a car or getting married.

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  2. Hello Bhagwad,

    I wrote a bit about this in IHM’s blog. I cannot possibly argue against the morals of those who think (on IHM’s blog) that the state must intrude into protecting them while they make decisions when being drunk.

    Congratulations on a well written article.

    @Rajat: While you raise an important question, I think the solution is either what Bhagwad mentioned above or the laws applying to children born outside state recognized cohabitation contracts should take care of it. On a different note, I think this shows why the state should have no business in deciding whether a woman should have an abortion or not!

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    • In reply to musingsofanerraticmind

      I think much of the problem centers around the word “rape”. Right now, if we apply that term to this situation, then it sounds as if I’m blaming the woman and saying it’s her choice to get “raped”, when in truth I don’t believe that is the right word to use at all. It’s not forced sex. Just ill advised sex. Which isn’t the same thing at all.

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      • In reply to bhagwad

        I agree that it would just be ill advised sex. I am just baffled by the commentator on IHM’s blog who refuses to acknowledge responsibility for choosing to have sex under inebriated condition, claiming that her choice was not made in sound mind and hence it be remedied in the form of trying the man for “sex without consent”. Shocking. Anyway, I am done with my two days of commenting on a blog after a long hiatus. I have frankly lost all faith in the fact that India will ever be a truly liberal and secular nation. Just counting my days on earth.

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  3. Agreed with this. A woman/man makes the conscious decision to drink. Whatever decisions occur afterward are a result of their conscious decision to bring their brain to a state of altered decision making. Impaired decision making is still a human choice. The person chose to be drunk. Whatever choices are made are their responsibility, no matter what.

    If a woman has sex, the other partner says she consented to the sex, she cannot remember it, it is on her. There is no proof she would have been raped.

    In order to prevent such things, what is the best solution? Well don’t drink.

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  4. Bhagwad, I agree with you. If you are adult enough to make the decision to get drunk, you should be adult enough to live with the consequences of the decisions you make whilst you were drunk. As you have correctly stated, the problem is the high value we place on the act of sex especially in India. Some women who make the decision to have sex whilst they were drunk try to justify the decision later on by blaming somebody else. Humans feel less guilty if they can pass on the blame.

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      • In reply to bhagwad

        Well it doesn’t matter at the end of the day. A decision is a decision. Doesn’t matter what state the mind is in. If one makes a conscious decision to alter the state of his/her mind, all choices following this particular decision are his/her fault.

        If a woman agrees to sex while she is in an altered state, she agrees to sex. She made a previous conscious decision and all decisions afterward are on her.

        This includes sex, driving, peeing outside, masturbating, whatever.

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  5. I think I agree with you based on personal experiences. I would never dream of calling those guys rapists merely because I was drunk when I gave consent. However, in some instances, there can be rape and we need a way to distinguish between drunken consent and lack of consent when drunk.

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      • In reply to bhagwad

        at that point, however, it just becomes semantics. I mean how would you quantify that? How would you qualify “passing out?”

        Drinking in itself is a conscious decision. You’ve made a conscious decision to drink and therefore all future events are simply consequences of that particular decision. Same with, say taking Benadryl.

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      • In reply to bhagwad

        Being unresponsive (ie passing out) is different than being drunk. How so? Well one is clearly conscious when one is drunk.

        Once one takes in drugs/alcohol, they’ve made a conscious decision to alter their decision making skills. Whatever decision they make afterward during their drunken consciousness is their responsibility.

        If a drunk person kills someone in an accident, that person is tried for manslaughter. It doesn’t matter whether the person is drunk or not, responsibility lays on the individual.

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      • In reply to bhagwad

        I am talking about drunk people yes. Passing out, however, itself can vary. If a person is MAJORLY drunk, can barely get out ANY of his/her words except “i wanna bone” that person can technically be considered passed out, right? Its pretty subjective.

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  6. I do understand where you are coming from, if the person consents no matter what state she or he was in, it cannot qualify as rape. But, like you said being drunk and aware of what you are doing is completely different from passing out and being taken advantage of. That’s where rape comes in and I think that was the point I tried to make – albeit sketchily – in my post. – https://whataboutourvoice.wordpress.com/2013/09/30/why-women-may-be-perpetuating-rape-myths/

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  7. .. Say a girl is so drunk that she throws up and passes out.. And she vaguely remembers waking up to someone ( a male who is also drunk) asking her if she’s okay and she replies yes. And then blacks out and when she comes to she is having sex with this male. She doesn’t remember how it happened she just knows it’s happening.. And she doesn’t say anything and she gets dizzy and everything goes black again. And when she comes to again they are still having intercourse. She remembers vaguely saying no to something he wanted to do, and she remembers crying. And the last thing she remembers is getting dressed and stumbling out of the room. And in the morning she hears him talking to his friend about how he knew exactly what he was doing tonight. And a few people told her that she brought it on herself because she asked for it.. She was also informed that when her friend came to check in her, this male was in there and blocking the door from opening, But she can’t remember anything. She has a boyfriend and when she was sober she didn’t want to have sex and made that very clear. Is this considered rape or a bad decision?

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  8. @unknown That is definitely rape. But, if I choose that I want to walk down the south side of Chicago to “see the sights”, I will also likely be a crime victim. I don’t think I’d ever choose to do that. And if I did, I would likely feel some personal responsibility for making a poor decision combined with blame for the perpetrators. It would be something that would impact me for the rest of my life regardless of any positive legal outcome. This is apples to oranges but I want to make a personal point.

    It is so hard for the law to be applied when there are so many unknowns. Things cannot be clearly proven. You’re talking about a man’s life being ruined in the wake… How do we know she actually blacked out? Maybe she is lying about it. Was it proven? And, no. Bragging about sex does not mean he raped. Stupid young men do this all the time. Both men and women are tossed in the same life-style pool and then poor choices are made. One day they are “friends with benefits on a hook-up” and the next he is a rapist and in prison. It is very different from when a woman is aggressively intimidated and frightened and/or beaten to submission and then raped. The evidence is very clear.

    You paint a very clear picture with your post; however, it’s hard for me to believe any of it without physical evidence or eye witness testimony. Maybe she also does not remember kissing him back – albeit while dizzy. Maybe she does not remember participating. Alcohol does not work immediately, and when it does, it can cause you to forget what you were doing prior to it. Sex only takes a few minutes.

    I guess the point I’m trying to make is that your supposition is correct. But the reality is that it cannot be proven, and it could be “made up”. Women and men are inclined to make up stories to support what they want to happen. Nobody knows for sure… He said. She said. She feels it’s this way. It feels like she was raped. He’s an asshole. Etc… Many men are put away and, then later, exonerated for rape. Their lives were ruined. Is it worth it to get a rape conviction on flimsy evidence and based on emotion?

    I choose not to be drunk or to associate with amoral people. And, I became an adult at age 18 – but really long before that.

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