Defining Rape III: Intoxication

A half-drunk glass of beer

A half-drunk glass of beer (Photo credit: Wikipedia)

Not surprisingly, most sexual assaults on women in college occur when the women are intoxicated. One reason for this is obvious: an intoxicated person is far more vulnerable to sexual predators than a sober person. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on the matter from the standpoint of morality.

From an oversimplified moral (and also legal) standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus here will be on the impact of intoxication on a person’s ability to given consent. To be a bit abstract, the philosophical concern here is about what might be called the person’s consent agency (or agency of consent). Roughly put, this is the capacity of the person to give proper consent. What counts as proper consent will no doubt vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree considerably about this matter. However, it should suffice for the purposes of this brief essay to go with an intuitive view of proper consent which involves the person having the capacity to understand the situation and the ability to consciously agree. Setting aside the complexities of the matter, I will now turn to the discussion of intoxication.

Intoxication is, obviously enough, a proportional impediment to agency of consent. Or, in plainer terms, the drunker a person gets, the less capable she becomes of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree (or, as people say, being drunk makes you stupid). When the person has no consent agency at all, having sex with that person would clearly be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the rather important matter of sorting out at what point consent agency is lost. As with all such things, there will be a significant gray area between the paradigm cases and this area will be the most problematic. I will get the easy paradigm cases out of the way first.

One paradigm case is that in which the perpetrator intentionally intoxicates his victim using what is known popularly as a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.

Another paradigm case is that in which the perpetrator is an opportunist: he does not drug his intended victim with a “date rape” drug, but finds someone who has rendered herself unconscious or incapacitated through intoxication. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out in a drunken stupor and someone takes my wallet, she has committed theft. Naturally, I could be justly chastised for being so careless—but this would not change the crime.

A third paradigm case is that in which a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. So much for the clear cases, now is the time for the grey territory between being unimpaired and being unconscious due to intoxication. Somewhere in this large territory lies the point at which a person loses her consent agency and is incapable of actual consent.

One obvious problem with finding the boundary at which consent agency ends is that this point might occur well before a person has lost the capacity to engage in behavior that would indicate clear consent by an unimpaired person. For example, an intoxicated woman might say “yes” to a request for sex or even actively initiate the act and then actively and enthusiastically participate. Despite the appearance of consent, the woman might actually be incapable of consent—that is, she can engage in consent behavior but has actually lost the capacity to consent.

If this can occur, it would create a serious moral and practical problem: how can a person tell when another person is capable of consent behavior without being able to give actual consent? This would obviously be important for the person interested in sex as well as those involved in any legal proceedings that might follow.

It might be countered that as long as a person can engage in consent behavior, the person still has agency of consent. That is, the apparent consent is actual consent. This does have considerable appeal in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a proper “yes” or merely “yes” behavior without true consent. It also would provide a clear basis by which potential witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. This view could be seen as a presumption that behavior indicates agency.

This view does have considerable appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted into the drive through). When I wake up the next morning and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

It is worth noting that a decent person would certainly take into account apparent intoxication and out of a sense of ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would hardly be theft. Likewise, if a woman is drunk but making it clear she wants to have sex with a man, the decent thing for the man to do is refuse, escort her safely home and, if necessary, guard her from the less virtuous when she passes out. However, if he accedes to her request, it would seem odd to claim that she had been raped.

One might also raise the point that it is better to err on the side of caution and assume that a person who is impaired to almost any degree has lost the capacity for consent, regardless of the person’s behavior. This, however, seems to be too low of a standard and there is the practical problem of recognizing such a low level of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

The last matter I will consider is a scenario in which both parties are intoxicated. In some college sexual assault hearings the man has countered the charge by asserting since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is certainly sound. To be specific, if sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they are raping each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that legitimately makes the person accountable for his (or her) actions. As with the agency of consent, this can be impaired in varying degrees or completely eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability.

Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting  another person or not. Thus, if two people are both too intoxicated to consent, they are also both too intoxicated to be culpable.

The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.

If this is the case, then when a man and a woman have sex while both are adequately intoxicated, they are raping each other. However, there seem to be few (any?) cases of women charged with raping men—or both parties being charged with rape. Even a cursory search of the web will reveal that men are (almost) uniformly presented as the aggressors while women are the victims. However, if drunken sex constitutes rape, then it would seem that college men are also being raped—by definition. Yet there is little or no concern or outcry regarding this. I will address this matter in my final essay on this subject.

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  1. It seems that if women have equal rights with men then it follows that men have equal rights with women. If that is the case then a man can claim rape by a woman. in cases of intoxication on the part of both participants in sexual intercourse it seems both parties can claim they were raped.if they are both found guilty then they should get similar punishments.
    This seems to be a nonsense, and I do not know if any cases of this nature have been before the courts. It seems to be a sort of stalemate situation unless somewhere or the other there is a glaring error in my reasoning.

  2. s. wallerstein

    Don Bird,

    Men and women have or should have equal rights. But they don’t have an identical sexuality. Actually, you’ve written in previous comments about the differences between male and female sexuality, so I’ll not point out the differences here.

    However, given those differences, if both are drunk and both “consent” drunkenly, there is a reasonable possibility that the male is raping the female. Whether that can be legally proved is not so clear.

    Finally, very infrequently women rape men (who do not consent or who “consent” drunkenly).

  3. Dennis Sceviour

    Mike questionably wrote, “To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.” The theft analogy assumes something can be taken away sexually speaking, which would be virtue. However, virtue is a cultural or meta-physical belief and not a scientific provable fact. Virtue theft may serve the devil’s advocate. The analogy of an assault is more useful since there is physical evidence or threat of violence. Most articles refer to rape as sexual assault and not sexual theft. It would be helpful to have a female opinion on virtue theft.

    If alcohol were classified as an aphrodisiac then the moral-consequential position would be a person gives sexual consent by consuming alcohol in the presence of others even if the person loses consciousness. The consent lasts through the duration of the unconsciousness. To suggest otherwise would be akin to saying that a patient has the right to terminate a surgical operation while under anesthetic. Of course, there are what-if’s. One exception would be the consumption of alcohol in a public drinking establishment where sexual activity is limited. The transactional name for this would be second-degree Rapo. Another difficulty would be if a sexual predator took advantage of a person in a diabetic coma while assuming it was intoxication.

  4. Doris Wrench Eisler

    Is it possible for dead drunk man to rape? I understood the male sexual act was not possible beyond a certain degree of inebriation. And is it possible for a woman to rape a man other than by using a physical device/object? Seduction/attraction is not rape or every sex act would be rape.The law cannot proceed beyond a certain point: if it can be proven/demonstrated that an inebriated woman gave consent to an inebriated man, either verbally or in another manner, then rape cannot be proven and isn’t a logical conclusion. Everyone does things drunk they would not do otherwise, in both small and more serious ways. That’s the reason for uniform drunk driving laws even though many claim they are in perfect control. But the burden of proof should be on the man because of the nature of the sex act. Can he prove he was not too drunk for sex, but also too drunk to know he was taking advantage? A fine balance.
    It is also less than reasonable to maintain that a woman used threats of violence or physical force to obtain sex: it is remotely possible though. But violence or undue physical or psychological force (lack of real consent) is rape by definition.
    You could also extend the argument to propose that a woman’s intent to become pregnant against the man’s wishes or intent is a kind of rape. Good luck with that one. Not using a condom without your partner’s consent is rape in Sweden (although I believe the charges against Assange have a political base) so the above argument has a legal setting there at least.
    Again, the law cannot do everything. Attitude changes are needed and might evolve if greater
    weight is placed on male responsibility. After 6000 years surely that isn’t asking too much?

  5. s. wallerstein

    Doris Wrench Eisler,

    Here’s an article on men being raped by women.

  6. Dennis Sceviour,

    My point with the theft analogy is not to claim that sexual assaulting an intoxicated person is like stealing from an intoxicated person in that something is stolen. Rather, my point is that what makes the act a crime/immoral is that I cannot give consent to what is being done to me.

    With an operation, the patient explicitly consents and knows what is going to happen. The person is rendered unconscious to benefit the person and the surgery is also intended to be beneficial.

    But, I suppose if someone consented to have sex, needed/wanted to have sex (like a person needed or wanted surgery), but could not or did not want to be conscious during sex, the he or she could sign some sort of consent form like a surgical form and then become intoxicated to have sex with the specified person and have it not be rape (morally). That would be a rather odd scenario, though.

  7. As a male who was raped by a female while drunk you assholes can just fuck off.

  8. To quote the bard; to reiterate a point Doris has made.

    Macduff: What three things does drink especially provoke?

    Marry, sir, nose-painting, sleep, and urine.

    Lechery, sir, it provokes, and unprovokes;

    it provokes the desire, but it takes away the performance: therefore, much drink may be said to be an equivocator with lechery:

    it makes him, and it mars him;

    it sets him on, and it takes him off; it persuades him,
    and disheartens him; makes him stand to, and
    not stand to;

    in conclusion, equivocates him in a sleep, and, giving him the lie, leaves him.

    It provokes, yet; unprovokes. The unprovoking; the phenomena of Brewer’s Droop.

    Alcohol lowers inhibitions; and a rapist may imbibe alcohol, to lower their inhibitions towards rape. But beyond a certain point; where it might be fair to say their cognitive and moral faculties are impaired to the point their responsibility for their actions is diminished; their faculty for sexual performance is also greatly diminished; even to extinction; it is extinguished.

    Unfortunately for women; intoxication even to the point of unconsciousness is no bar for a sexual act to be performed on them. Alcohol is the most common date rape drug. And young men, giving each other “seduction” tips, will advise things like; offer to buy her drinks. If she doesn’t drink, get her a vodka and orange; it’ll taste just like orange juice to her. Even if she does know there’s vodka in it, get the bar man to put in a double or even a triple measure; and when it really hits her, that’s when you can make your move; out of the friendzone and into the endzone.

  9. Erections in males can be involuntary. Furthermore men can have sex without using their penis (i.e. using their mouth or anus or even fingers) so arguments that a man getting that intoxicated would prevent him from having sex are wrong. He could. He could even say “yes” but be so intoxicated as to be deemably incapable of giving consent.

    But there is this prejudice and false view of men being unable to do this that prevents most people from giving this an objective view.

    And that’s the problem with campus sexual assault cases. The people reviewing these cases are not equipped to objectively evaluate the cases. They are typically judged by college staff with no legal training.

    Even if you want to argue that the bar should be lower for expulsion than it should for criminal conviction the case should still be judged by people with legal training who can objectively judge these cases and not people who may be biased due to superstitions and prejudices.

  10. I have a few questions for the author.

    What happens if both are too drunk to give consent? Have the both raped each other?

    What if the woman is a teetotaler and the man is an alcoholic and they only ever have sex when he is too drunk and she is sober? has she rapped him?

    What if it two women, both are too drunk? How about two drunk men? Who has rapped who?

    Does a woman need to get consent from a sober man or is it only one way?

    Isn’t this whole premise sexist?

  11. Paul,

    1. I would say no, but if the school policy/law says that being intoxicated means that one cannot give consent, then the two people would (legally) be raping each other.
    2. Depends on whether he consented in advance to what he made happen. But, legally, this depends on the laws.
    3. The sex would not matter in terms of the ethical aspect, but in some US states same-sex relations are still criminalized (by laws against the activities that same-sex people would need to use, like oral or anal sex).
    4. Consent would be required, at least on my view.
    5. Which premise?

  12. I’m speaking from a purely ethical/moral perspective here, not a legal one.

    In my perspective, there are different “stages” of intoxication. The first is the “buzz” stage. At that point, while behavior may be slightly altered and inhibition lowered, ultimately in my experience, people in this stage tend to almost never significantly regret any decision they have made in this stage, and thus may effectively give consent since it is align with sober judgment.

    Other stages can be identified when physical functions become significantly altered. Examples are not being able to walk straight, feeling nauseous/vomiting, etc. I’m not going to separate these stages because it’s irrelevant. Anyone in this stage’s consent should not be trusted. It’s entirely possible that someone may be able to not regret actions in this stage, or that, if sober, they would have said “yes,” but that’s irrelevant, because many people in this stage would not have their sober actions align with intoxicated actions. Thus, because of the impossibility to know someone’s sober actions in that situation, every case must be morally treated as rape.

    As for the White Castle analogy, this is flawed because of the extent of the ramifications. The negatives of non-consented buying a burger are far less than the negatives of non-consented sex. It doesn’t matter if the sex negatives are psychological, they still exist and they are disastrous. If, for some reason, buying a burger resulted in extreme metal duress on your part, yes, it would be immoral of the friend (if they had knowledge of this very strange condition) to allow you to buy a burger when you had not contented.

    A better example would be Sally. If you were intoxicated to the point of non consent, it would be immoral of Sally to accept a significant amount of cash from you. By significant I mean enough to cause extreme duress.

    I’m interested to hear your thoughts.

  13. @ Julie

    So what if it could be proven that for a given individual sex wasn’t as psychologically weighty as it is for the average person should the rules change?

    In my understanding of it the requirement of consent isn’t about psychological effects it is about the principle of autonomy. If I was ever raped even if I felt fine afterwards I would still press charges in order to uphold that noble principle. So that principle should likewise apply to a burger.

    A person can be sober but full of feelings of revenge against their boyfriend or girlfriend and so have sex outside the relationship that psychologically scars them when they feel guilty, should it be considered statuatory rape then to accept sex from someone you know is already in a relationship and wants sex just out of anger towards that other person?

    People choose to wallow in feelings of anger or to drink alcohol, if this leads them to making decisions they regret then it should be considered consent. It should only be considered nonconsensual if the person didn’t choose to drink.

    You are still you when you are drunk, just a more uninhibited form, and you chose to become that way by drinking. I have had sex that I probably wouldn’t have agreed to if I wasn’t drunk, even when I was nearly blackout drunk, but I never thought of it as rape.

  14. Why don’t men ask me out? | Observing the Decline - pingback on January 20, 2015 at 4:58 pm
  15. A couple years back my girl friend found our her boyfriend (at the time) was cheating on her, she took a group of her friends and when to confront, and subsequently dump, him. Her friends gave her drinks, which, she at the time believed to be rootbeers, but whether they were drugged, spike or simply another drink all together, the result was intoxication. Before he arrived her friends left her alone hoping they would make up. She says she doesn’t remember what happened, but they had sex, which resulted in her pregnancy. She certainly had no desire to have sex with him. Whether she said yes or not she doesn’t remember, but I know if she wasn’t drunk, it would have been impossible for it to have ever occured, and i believe firmly she was incapable of giving proper concent at that time. …legally, was she raped?

  16. You have made very legitimate points here. But I would like to address the case in which a female, whom has a right to drink and have fun amongst friends, but at some point blacks out due to medical conditions – because it can happen with five beers or not even happen with 8 beers or so on.. (That’s just an example) it is obvious the bigger men whom drink regularly that do not black out or do so as easily by some chance, notices she is speaking jibberish or possibly passing out up against the person sitting next to her, then the next morning wakes up on the floor with skinned up rug burned knees and no one in sight.. That maybe the two guys took advantage of her and possibly tag teamed her.. Or in this case be it RAPE!????? All the while her female cousin who secretly hates her looked the other way and took his side and lied for him because they were “friends”. I’d say that the guys tend to wait it out until they know a girl is so drunk and has a history of blacking out that they anticipated using and raping ” without consent ” her. And all she wanted was the truth and an apology. But they are pigs whom show no remorse and blame her. Blackouts are serious. Sometimes you function but you truly are not the person people that love you n know you are used to seeing. You can still sometimes dance or even drive at least halfway to where you thought you were going just to wake up in an accident… Or be (what your friends called) speaking in tongues laying on the back porch of a bar..but the main point here I am trying to make is – guys are usually almost always the aggressor in these cases… And obviously ON TOP… If being on top while a female is in this state of consciousness and is not considered rape then there will never be justice.

  17. Last line ***and it is not considered rape – then there will never be any justice. (PTSD, flashbacks, depression, anger, anxiety, worthless, lonely, rejection, no friends, dark thoughts, revenge) NO CLOSURE

  18. I know of a specific case where both parties were drinking. The female gave verbal consent. She being 26. The male being 19.
    The female decided 3 months later the act was asult and reported it. The male was found guilty and now will be a sex offender and isn’t 21 yet….

  19. I came across this post because I recently had a discussion about rape that didn’t end well. She was a sexual assault victim and understandably saw it as a black and white issue. As far as she was concerned, once a woman made an accusation, the guy was guilty, and if multiple women accused the person, that was just as good as any evidence of guilt. I felt bad for her, and I understood where she was coming from as a victim, but I had to disagree with her.

    I am extremely careful about when and where and with whom I have had sex. I am 34, and I am not as experienced as most at sex partially because I heard the horror stories and I can think of nothing worse than being falsely accused of rape. One of my strictest rules is that I never have sex with someone who is intoxicated, and I need to see how many drinks they have consumed, so no pre-drinking. I’ve actually had women tell me they need to get drunk to have casual sex, that’s a HUGE warning flag for me.

    – I guess one of the question men and women need to ask themselves is whether complete abstinence is something society should adopt in order to if not eliminate, then more easily identify rape. I’m pretty sure the majority of men and women would strongly reject this option.

    – The other option would be to have legislation prohibiting sexual acts under the influence. Similar to drunk driving laws. I think this would curb irresponsible behaviour if people had to pay a large fine. It would also save a lot of people from being raped or being charged of rape because they were drunk.

    – 3rd option is we record every sexual encounter. There are ongoing discussions about consent. Sexual consent is not a one-time thing, it is ongoing and can be withdrawn at any time up until the conclusion of the act. For this reason, unless both parties constantly sign written contracts during sex, recording the act is the only sure protection for both parties.

    If people disagree with any of these measures, then you agree that a little bit or rape is ok for all society to continue to live a sexually liberated life.

    Our courts are biased towards protecting the innocent accused, and that is the way it should be. I would rather be the victim of any crime than falsely accused of that crime (except maybe murder I’m on the fence because there is no capital punishment, but I would be considered a monster by society).

    I think in a situation where a boy gets himself drunk, and a girl gets herself drunk, both beyond the point of consent, they are both responsible. If a guy or girl gets the other person drunker than themselves and has sex with them, that could reasonably be considered rape. For that reason I think people should stop buying each other drinks for legal purposes.

  20. What on earth is the poster above talking about.

    It may sound nice in theory, yes, I agree. But it’s going to be incredibly difficult to enforce sexual “morality,” so to speak.

    I agree with your view on a personal level. I think it’s best not to have sex with drunk strangers, for many many reasons.

    But my ethics are just that – mine. Maybe you can do a campaign or something to persuade people why it’s a good idea. But ultimately, you simply cannot enforce moral behavior. I mean… it’s not even truly moral if it’s enforced, because you’re just doing it out of fear.

    Thank goodness you’re not a legislator…

    P.s: I’m not a philosopher, but I’m aware you lot enjoy deductive reasoning and whatnot. Please, spare me the formalities and just talk back. I will understand you quite well.

  21. college student

    I was drinking all night and have no memory of going home with him. Not sure how we got back to my room. I’m not sure if I consented to it but I am going to assume that my drunk self probably did. My issue is that I slightly remeber him seeing me vomit and still had sex with me. also, I’m not on birth control which I AM ALWAYS VERY CLEAR ABOUT and he didn’t use a condom and came in me… Is that enough evidence? I feel like even though I may have consented, him witnessing me throwing up and unable to walk or talk quite right should be enough. And the fact that he came in me is just an added bonus to the already fucked up situation. Is there any hope. 😥

  22. s. wallerstein

    College student,

    I don’t know where you are, and rape law varies from country to country. However, if there is a rape counseling center or a rape hot line where you live, I suggest that you get in touch with them. Police treatment of rape victims also varies from country to country: in some places they have special rape units, who are very understanding; in others not so understanding.

    In any case, since no birth control was used, I suggest that you take the morning after pill as soon as possible.

    I wish you luck.

  23. They were both drunk and she was aware of what she was doing, she came up to him in the bar wanting him to take home with him and he told her he couldn’t take her to his house he had 4 kids teenagers,but they could go to a hotel and they went to a hotel and the next morning he offered to take her home and she didn’t want to get up so early so he paid for the day at the hotel so she could sleep longer. She told him she would have someone pick her up, he had to get home so he could be there before his mom had to go to work . She called the police later and told them she didn’t remember having sex with him so 3 weeks later he went to a concert at the same place he met her and the police came there and arrested him. They put him through hell he followed every thing the court told him and he was treated like a criminal and he has never been in trouble and would never have sex with a woman if she was passed out or said no. He needs help he didn’t have very good representation from his lawyer.

    Thank you

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