Sunday, September 1, 2013

When YES means NO.

Person A and Person B get drunk and have sex. Both are quite drunk. There is a claim made that A was “Too drunk to form proper consent” thus was raped by B. B also claims to have been “Too drunk to form proper consent” and was thus raped by A. Who, if any was raped?

So what does “Too Drunk to Form Proper Consent” mean? Well I will cut and paste the exact words from a complaint about legislators’ attempts to actually define the word: “…under the influence of alcohol.” Yep, if she had anything to drink, he is a rapist. How cool is that?  So, yeah, you know me… can’t leave well enough alone – I have a couple of teensy weensy questions.

What is too drunk? Clearly, unconscious, or unaware of what is going on crosses that line. But doesn’t “How Drunk” inherently defy definition? Yes, blood alcohol content is somewhat defining, but I have friends that are relatively unaffected on the same BAC that would render me unconscious. And maybe, just maybe, we should instead of leaving the fate of hapless men everywhere to the arbitrary whims of women with potential day after remorse, we should assign a non-arbitrary and non-malleable distinct definition to the term. Likewise we should perhaps tell our daughters, etc., to not put themselves in situations like this.

So I can hear you screaming: “Sure - Blame the victim, you pig!” While it is inarguable that rape is solely the fault of the rapist, it is likewise inarguable that any person who willingly drinks enough alcohol that they are unconscious or otherwise unable to defend themselves against the unscrupulous is also a victim of their own stupidity. And while such does not reduce the responsibility of the rapist it rightly admonishes each of us of our own responsibilities to not recklessly put ourselves in harms way. And while passed-out drunk clearly negates "ones ability to form proper consent" simply being in an arbitrary state of inebriation that one's judgment is impaired does not magically change willing, if perhaps unwise sex to rape. It can be argued that the judgment of one who chooses to act in such manner was impaired before even beginning to drink. 
And who was raped? I mean, if the man and the woman were both “Too Drunk to Form Proper Consent” then was the woman raped, the man, or both? Yes, that is a serious question; and I expect you are giving the same incredulous look that so many I have asked this of give. “Well it’s the woman of course,” they usually say. “…men can’t be raped.” Well there are thousands of prison inmates who would most heartily disagree with you on that. “Well women can’t rape men.” Why not? I mean, this is not an issue of forcible rape but rather about how inebriated one is. Can men not be as inebriated as women? And what about a case; a not uncommon case, where an inebriated woman provides an equally inebriated man considerable “assistance” just so that he can function adequately. Is she still being raped? And why in such case is it not he who is the “victim?” And in another scenario, also increasingly common with the growing acceptance of gay dating; what if both are males, or even both females? What if, as is likely in such cases, the acts done to each were essentially the same but one or the other later decides they were “too drunk to form proper consent?”

And of course most reading this are incredulously hissing about now that "it is obvious what is intended by the law: that having sex with an unconscious or nearly unconscious girl / woman is rape. While I would agree that this is most likely what is intended by such laws, this is not what the actual law states or enforces. What such laws actually specify is "Under the influence of alcohol." The problem with such majestically ambiguous laws is that technically the law applies to anyone consuming even a sip of alcohol. Technically anyone having sex with anyone who has had so much as a sip of alcohol is now technically a rapist, and at the majestically arbitrary whims of the "victims," prosecutors, judges, and the courts.

So in this new world where words can be assigned whatever meaning we wish on a whim the old quip "You can't rape the willing" is no longer true: evidently now you can. So now we must not only tell our sons that "No always means no!" we must also tell them that "Oh baby, yes, yes, yes" sometimes does too.
I am not advocating that rape is not a horribly serious act or minimizing it at all, but rather, as it is such a serious act, and the consequences of it so severe we should be very careful to not define rape arbitrarily, or as may be used conveniently to assuage anyone’s guilt, or a convenient cudgel to bludgeon one with just because they can. Because it is so serious, and the consequences so serious for those committing rape, or even those accused of it, we should be very careful to assure that the accused are first, and carefully determined to be guilty, and then to assure that the penalty for such horrific acts are extreme. But to assure that the horrific act of rape is dealt with with the seriousness it deserves we should first determine and define without arbitrariness what rape is, and is not.
So yes, No always means no, and always should. But yes does not mean no, and we should be very careful of punishing people for believing someone’s yes means yes, or that a person can negate their own responsibility, and assign it to another by drinking.

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