Wednesday, April 22, 2009

Date rape or drunk sex?

by Emily Sullivan

Two weeks ago, I attended Drunk Sex or Date Rape: Can you tell the difference?, a presentation by attorney Brett Sokolow. I know that I'm a little late in getting this on the blog, but I think it's important enough that we think about his presentation, regardless of the timing. Sokolow went through the facts of an actual case, allowed the audience to ask any questions we wanted, and then had us decide: Date rape or drunk sex? I was startled to see 25% of the audience say not guilty. I didn’t think it was ambiguous—the victim was raped. She was clearly incapacitated, and therefore unable to consent, when the perpetrator had sex with her. See what you think. Here are the facts:

Amy—5’4’’, 125 pounds, and 20 years old—went to a house party at 11 P.M. When Todd arrived an hour later, she’d had five beers and was slurring her words. He estimated she’d only had three, and to catch up, downed three himself. Despite being a large athlete, that was all Todd would drink that night, because he “wanted to be sober for whatever was to come.” That didn’t stop Todd from bringing Amy Everclear Jell-O shots; after 5, she had to run outside and throw up. Scarcely able to stand up straight, she asked Todd to “walk” her home.

Once there, Amy asked Todd to come in. After getting her some water, Todd headed to the door, but Amy stopped him with a passionate kiss. After fooling around for a while, though Amy got up to vomit again. When she came back, Todd smelled toothpaste on her breath, so he figured she was lucid, and they continued. As things got closer to sex, Amy stopped him, saying she was “too drunk right now.” A minute later Amy passed out.

Clad only in his boxers and socks, Todd remained on her couch, “to make sure she was okay.” Twenty minutes later, Amy woke up and told Todd—in slurred speech--she was a whole lot better. They engaged in what Todd identified as “highly participatory” sex. At 6 A.M., Todd wrote a note with his name and number, and left her room. Five hours later, Amy awoke with no memory of anything after the second shot. Puzzled upon reading the note, she called Todd to ask what happened. She hung up the phone in tears after finding out that she’d lost her virginity, and remembered nothing of it.

Todd, in his defense, claimed that he didn’t know that the shots were Everclear shots, or even that they were stronger than normal. He pointed out that he made no attempt to have sex with her for twenty minutes while she was passed out (bravo...not.) He had tried to leave, and she had kissed him. He also thought enough alcohol had passed through her system that she was no longer incapacitated--a few hours had passed and she’d thrown up twice. Todd was a bartender, so he knew about alcohol—he said he probably would have served her in his bar.

Here’s a kicker: the night before the party, Todd and four friends made the Jell-O shots. The shots were not served until Todd and those four friends were alone in the house with five young women. The guys served the shots to the ladies without consuming any of them themselves. How this did not register in my peers minds as predatory?

What did the actual jury decide? It convicted Todd of second degree sexual assault. Second degree sexual assault means technically consent was given, but the victim was incapacitated by drugs or alcohol and the perpetrator knew this to be so. Incapacitation means you are so drunk or drugged that it is like you are asleep. He was sentenced to two years in jail, and served 18 months of it

Let’s get back to the statistic: 25% of Princeton students thought he was not guilty? This case is not ambiguous. Amy had thrown up twice and passed out in front of Todd. By Todd’s (incorrect) estimation, the 125 lb. Amy had consumed three beers and five Jello shots over the course of a few hours (she had actually consumed five beers and five Jello shots). Amy was clearly incapacitated, and Todd absolutely knew this to be so. Todd engaged in sex with Amy when she was physically incapable of giving consent. End of story.

Was Amy responsible for her drinking? Absolutely. Does this IN ANY WAY imply that she deserved to be raped? Absolutely not. I may be blackout drunk and asking you to punch me in the face, but it still wouldn’t be okay for you to punch me. Why, then, is it excusable to sexually violate a person’s body when they are drunk?

A Boston University study did a survey of college-aged men. 7-8% of those surveyed said they would probably act the way Todd did. Of those who had done what Todd did, the average amount of times they had done it was 6.

This is scary. It is scary that it happens so often, and scary that some of us can look at this case and question whether it was wrong.

16 Comments:

At April 22, 2009 at 2:38 AM , Blogger John said...

The fact that Any initiated any and all sexual activity seems to me to imply that this was unambiguously not rape (or if it was, was Amy on Todd). While Todd made the jello shots, if he indeed did not have sex with her while she was passed out I don't see how his actions would have been rape--for he couldn't have known that she would have initiated sex with him after coming to; and thus his waiting would have been in good faith.
While the men's actions may have been predatory, that doesn't necessarily make any sex following them rape, even if it does increase the chance thereof.

 
At April 22, 2009 at 9:49 AM , Blogger Halo said...

Saying that Amy possibly raped Todd in this situation makes light of the times when men are actually assaulted. However, considering that Todd was the sober one and Todd described the sex as "highly paticipatory", then don't argue that this was Amy assaulting him.

Your rape apologism makes me sick, John. You are part of the problem. Read Emily's post again, please.

 
At April 22, 2009 at 10:10 AM , Blogger LSG said...

That's rape. Since it seems to be necessary, I will spell it out.

1. No one is able to competently consent to sex two minutes after they've been unconscious and twenty minutes after they say they're too drunk for sex.

2. A man who was a bartender and had both made the Everclear shots and plied them on her couldn't tell that a vomiting, slurring, passing-out woman was too drunk to competently consent? Baloney. He could smell toothpaste on her breath, and so he assumed she was lucid? Baloney baloney baloney.

3. Even if there was no alcohol involved at all, "I'm feeling better now" != "Please have sex with me immediately."

4. It's striking to me that Amy says she remembered nothing after the second shot, but we have an account of her kissing him, inviting him in, being "highly participatory" and so on. While I'm not saying that didn't happen, it very well could have (and in those circumstances it's still rape), if she truly didn't remember anything the only source we/the jury could have gotten this information from is Todd. While this account takes a fly-on-the-wall perspective, in truth we only have his word for anything that happened.

5. This doesn't relate only to this situation, but I think it's important to constantly be aware of our language: it's impossible to "lose your virginity" to rape. Rape is not "sex."

I'm going to go with Halo, John, and say that snidely remarking that maybe Todd was raped is sickening. It also shows that you're not just willfully ignorant, you're actively trying to provoke us and/or rationalize your extremely twisted conceptions of sex. Stop it.

 
At April 22, 2009 at 11:13 AM , Blogger Jordan Bubin '09 said...

LSG said it pretty sufficiently, but I think it's worth putting it simply:

If you're with someone and they puke a couple of times, keep your pants zipped.

If you're with someone and they PASS OUT, zip your pants back up.

You might think it's overly cautious, or legalistic, but it seems like a decent, moral thing to do to ensure you're not screwing someone who has no idea what's going on. If you have sisters, plug 'em into Amy's position, and see if the matter still seems so abstract to you.

 
At April 22, 2009 at 12:53 PM , Blogger Sam said...

I think the disconnect here comes from two different things:

Intentions - it's easy to read this story as either
 a) Todd is a predatory guy who, while he didn't actually force himself on Amy did intentionally get her drunk and then waited around until she (in an obviously compromised mental state) agreed to do what he was after all along. or
 b) Todd is a well-meaning guy who was attracted to Amy, had no nefarious intentions, and took her advances and (again, compromised) consent as a sincere expression of her interest in having sex with him.

We have no way of knowing which of these is nearer the truth (the story - if we assume it's 100% true - provides evidence for both lines of thinking). Either way I'd agree with Jordan that it was a serious mistake to do what he did - obviously she was at the very least severely impaired in judgment and he (as the more sober of the two) should have "zipped his pants". However I feel much less comfortable calling it "rape" or "assault" in the second instance.

Which brings me to the other complicating factor - the terms rape and sexual assault themselves. These terms are used to describe such a wide variety of offenses - from stranger in an alley rape or sexual assault, to forced acquaintance rape, to sex that is "non-competently" consented to (and everything in between). None of the above situations are acceptable, but using the same term to describe the first and the last doesn't seem fair to me. And if I had to guess (or maybe hope) that's probably what hung up a lot of the 25% who voted not guilty.

 
At April 22, 2009 at 9:23 PM , Anonymous Red said...

John, that's ridiculous. Todd's clearly the predator in this case. Men cannot be victims of rape; indeed it is arguable that even consensual sex is rape against women.

 
At April 22, 2009 at 10:02 PM , Blogger Franklinster said...

Red,

I appreciate you bringing up the issue of our culture being systematically violent towards women. Also, I want to make it totally clear that I do not want in any way to imply that Amy is guilty of some crime against Todd.

However, I want to point out that it is unfair and hurtful for you to claim that "men cannot be the victims of rape". Anybody can be the victim of sexual assault, regardless of one's gender or any other facet of personal identity. While it is certainly true that most sexual assaults are committed by a man against a woman, according to the Rape, Abuse, and Incest National Network (http://www.rainn.org/get-information/statistics/sexual-assault-victims), 1 in 33 American men will be the victim of a rape or attempted rape during his lifetime; that's 2.78 million men in the United States.

I think that you probably meant to say that men cannot be the victims of rape by women, which certainly applies in the Todd/Amy case. I don't want to distract from the important discussion of campus sexual assault, in which women are overwhelmingly the victims and heterosexual men the perpetrators. However, I think it's important to be careful with language that could be so hurtful to the (millions of) men who have suffered this trauma.

 
At April 23, 2009 at 10:56 AM , Blogger LSG said...

Excellent comment, Franklinster.

Men can certainly be raped, by other men or by women (a physical reaction like an erection doesn't equal consent -- many rape victims, male and female, find their bodies reacting to the rape, which adds even more layers of pain, confusion, trauma and self-blaming to their experience). Women being raped is far, far, far more common.

Red, I have a sneaking suspicion that you're trying to provoke a reaction. If you're in earnest, I disagree with you but invite you to elaborate so we can have a conversation.

Sam, I do think there is some gray area around consent and alcohol, and that ambiguous situations are possible -- both parties are extremely drunk, for instance, or one party gives consent sober with the understanding that sex will take place later while drunk. However, I don't think this situation is ambiguous at all. I don't think it's a knee-jerk "If she's been drinking at all it's rape no matter what!" reaction to say that it's assault for even the most "well-intentioned" man to "have sex" with a woman who was passed out moments ago. This wasn't "compromised consent," and it wasn't a "mistake." I don't believe that Todd was such an naive idiot that he didn't understand what vomiting, slurring, stumbling, periodic unconsciousness for the love of God, and "I'm too drunk" mean, even when combined with a few sloppy kisses. Hint: it's not, "I have a sincere desire to have sex with you!"

I don't think anyone would argue that not all rapes are of equal severity. Calling what happened to Amy "rape" doesn't lessen what happened to a woman who was gang-raped and beaten half to death, because I'm not saying the same things happened -- I'm saying "sex" without consent happened to both (and I'm saying that no one should tell Amy she doesn't have a right to be traumatized because "it could have been so much worse"). In fact, we do have lots of qualifiers: we say date rape, stranger rape, acquaintance rape, marital rape, statutory rape, war rape, even the horrifying "corrective" rape...

I don't think you're being a rape apologist, Sam, but this is a technique used by many rape apologists -- it wasn't that bad, "she wanted it," she kissed him, he didn't make her drink, it's not like he was forcing her with a knife. Not calling this case of sex without consent rape doesn't do anything to protect the victims who were raped at knifepoint, it perpetuates the idea that a woman who flirts or drinks or doesn't fight is "asking for it" -- even when she clearly is not. It promotes the idea that women's default setting is "yes" when in fact everyone's default setting is "no" unless they look you in the eye and say clearly "yes please!"

 
At April 23, 2009 at 5:54 PM , Blogger Roscoe said...

So I have been thinking about this issue for a while now, and let me begin by saying that LSG does a great job of keeping us rational and not emotional. It's true that rape and sexual assault can elicit some intense emotions; the words, to be completely honest, don't just mean "sexual activity without consent" in the vernacular. Regardless, that's what it means in law and that's what it SHOULD mean in vernacular.

The only argument I see takes the form of something Emily said. Sure, just because you are drunk and it LOOKS like I want to punch you, doesn't mean I should punch you, that seems absolutely clear, but that is NOT what happened in the story, as much as I agree that it is rape. These kinds of disanalogies are what frustrates both sides from really communicating with each other. The very fact of the matter is that, in this case, is something more like the following: someone had their hand out and in a fist for some reason and, because you were drunk, you ran into it with your face. This too, however, seems like a disanalogy for two reasons: 1) You can make a decision about sex, while the kind of accident described above is just that, an accident that takes no thought process and 2) You WOULDN'T make that kind of decision sober (I mean, other than the guys on Jackass, who would willfully ram their face into a fist?), but you CAN willfully have sex. So, a better analogy is needed:

(Preface: I'm taking the most charitable reading of Todd's story for the following, if Todd had in fact premeditated the whole situation, things would be more obviously different). If there was the exact same scenario as above, but instead of sexual activity it was Amy giving Todd a hundred dollars, most people would not agree that Todd "stole" from Amy (or took Amy's money without consent). However, we are asking people to think that Todd "stole" Amy's body (or took away Amy's "sex" without consent). There are only three ways around this, I think. The first, and most obvious, is to say that the analogy is inherently flawed, that it isn't valid (as opposed to sound). I am very confident this is not the case. The second way could be to say that, while the analogy is valid, it is not sound to make such an analogy because giving away some money cannot possibly be compared to giving up your body/sexuality. However, I don't think this is the road any of us want to take, it's murky and there's too much thinking. I think, if you really believe that consent cannot be given when incapacitated, we have to just bit the bullet and say that Todd really did steal from Amy. We should argue that, while we usually just brush off things like the analogy above, it is still wrong. And this shows, again, just how important is LSG's last post.

Rape hasn't been the subject of public discourse until very recently in our history, and rape law activists have already seen many heartening changes. (I JUST had someone come in to talk about rape reform in my feminism class). This is not enough, though. The public needs to understand in a rational manner what is rape and sexual assault; that it is not just some stranger in the bushes who will rape you at knifepoint. More specifically, the public needs to understand that inebriation of any kind, while fun and whatever, actually makes you stupid! It takes a good, moral person to look at another really drunk person and say, "You know what, I really want your (boobs, penis, money, whatever) but I understand that you are shitarded right now and I'm not going to try to swindle you out of those things that REALLY matter to you)." And YES, this does mean that people have some personal responsibility to others. That one cannot live in a society independent of everyone else. You can't just go on your life taking a passive role and pointing at your passivity as an excuse when it is just that passivity that allowed someone else's rights to be violated. The above situations can only be avoided by active morality. Sadly, however, there will always be those people that will remind us all to just "let people be who they want to be" even when they are drunk (that's how one of my friends convinced us to let another one of our friends give a hobo $20 while she was drunk). And while some of you liberals might cringe at the idea of paternalism, when people DON'T actually have the capacity to make rational decisions, paternalism loses all of its bite.

So my question, now, is the following: What do I tell that stumbling girl walking home with a guy? Or that girl taking a beer from a guy when she is clearly wasted? More importantly (because we could just tell the sober guy to keep it in his pants), what do we do when BOTH parties are wasted. I mean, now that we are talking about not trusting women or men with their sexuality when they are drunk, how can I be an effective paternalist? All of a sudden, telling people not to drink is ok, not because it increases the risk that they'll be raped (which would perpetuate the notion that drunk women and men are helpless and should be raped), but because drinking increases the risk of them doing something they really don't want to do (which perpetuates the reality that drinking makes you stupid and unable to control your decisions in a rational way). But most of you would disagree. That's when it starts being REAL paternalism. When we start telling RATIONAL decision makers that their RATIONAL decision (ie. drinking) is wrong or misguided. So if you're not comfortable with telling people to stop drinking, what do you propose to help this tragedy?

 
At April 23, 2009 at 11:44 PM , Anonymous Molly said...

Roscoe,

Thanks so much for your detailed and thoughtful response. I definitely appreciate the tension inherent in the "paternalism" question -- i.e., how restrictive is too restrictive? how much can we trust people to protect themselves? -- but I think you may have answered your own question in your last paragraph. You ask us what we should tell a girl in Amy's condition if we see her going home with some guy, or if we see her taking a beer from him when she's clearly already super-drunk. And I think what you're heading towards, although you may not have stated it explicitly, is that it doesn't necessarily matter so much WHAT we say, as long as we say SOMETHING. Go up to her. Draw her aside. Ask her how she knows that guy. Ask her how much she's had to drink. Hell, just ask her if she's okay, or if she wants someone to walk her home. Our discussion here revolves around whether or not intoxicated and inebriated people can make healthy decisions for themselves. I think the solution we're looking for is this: if you see someone in Amy's condition, don't let her get into that kind of decision-making situation. Head her off at the pass by offering another option: "Hey, are you okay? Do you need someone to take you home? Let me call one of your friends for you." I'm not a member of SpeakOut, but I do think that this instance is one in which their motto is entirely apt: "Be a friend, not a bystander." ESPECIALLY if you see someone like Amy, and she doesn't seem to have any other friends around. I guarantee you'll be one, simply by virtue of protecting her from a scenario that can only end in trauma and regret.

 
At April 24, 2009 at 1:05 AM , Blogger LSG said...

Yes, Roscoe, good post. I agree with Molly, but wanted to add something. As important as it is to say something to Amy, it's also important to say something to Todd. I don't think it is overly paternalistic to say to Amy "You seem pretty drunk, maybe you should slow down," but I want to make it crystal clear that it is *still* Todd's responsibility not to rape her. A well-placed "Hey man, why are you even thinking about going home with her, she's obviously black-out" puts that responsibility back where it belongs and calls him out on his nefariousness -- or if we accept the most innocent reading of the story, forces him out of his self-delusions. Male allies, I think this is a place where you can be especially helpful -- making sure that Todd knows other men won't approve of his "conquest" could have a powerful effect.

 
At April 24, 2009 at 12:43 PM , Blogger LSG said...

I just realized that in my second comment I say "I don't think anyone would argue that not all rapes are of equal severity" when I mean "I don't think anyone would argue that all rapes are of equal severity." Yikes. Sorry.

 
At May 29, 2009 at 1:23 PM , Blogger Michael Ejercito said...

I am missing something.

Where is the part where Amy said, "No."?

 
At September 4, 2009 at 11:25 AM , Anonymous Anonymous said...

This is what's wrong with alcohol and societal expectations. When a person is drunk, are they responsible for their decisions? Either the answer is yes, or it's no. If the girl in the story had decided to go for a drive and got a DUI, the courts would say that she was legally responsibile for her decision to drive while intoxicated. However, if she has sex, then the courts say that she was legally incapable of making decisions.

You can't have it both ways and claim that your justice is anything more than arbitrary.

 
At September 5, 2009 at 12:53 AM , Anonymous Anonymous said...

I was doing some research on a related topic tonight, if not the identical topic, and wanted to provide a bit of a different perspective than what I could find when reviewing previous comments.

The real issue here is that it is not accurate to presume that Amy understood the risks she was stepping into, because of the sheer fact that Amy was a virgin. If Amy had some sexual experiences and still chose to drink in this manner, then it would certainly open the door for people that would claim that she invited this unwanted act. The moment that Todd chose to give Amy everclear shots, while not disclosing to Amy that Everclear would likely lead to sex drives she had possibly never even experienced in a conscious state, Todd was morally responsible for the entire ordeal. Distorted sexual motives are what they are, regardless of whether a target is a virgin or not; however, Todd took something from Amy in a way that was unforgivable, regardless of whether he knew it or not at the time. I am pleased to see this lawyer doing this type of education on college campuses. I wish he had been around during my days in college. The real misfortune is that women do not receive adequate education on the female sex drive at critical ages, so that Todd would not be able to prey on Amy's ignorance of her own body. Likewise, it's unfortunate that young men are no longer taught to stay away from virgins as opposed to trying to conquer them.

 
At September 5, 2009 at 12:48 PM , Blogger Michael Ejercito said...

This is what's wrong with alcohol and societal expectations. When a person is drunk, are they responsible for their decisions? Either the answer is yes, or it's no. If the girl in the story had decided to go for a drive and got a DUI, the courts would say that she was legally responsibile for her decision to drive while intoxicated. However, if she has sex, then the courts say that she was legally incapable of making decisions.
Very good point.
The moment that Todd chose to give Amy everclear shots, while not disclosing to Amy that Everclear would likely lead to sex drives she had possibly never even experienced in a conscious state, Todd was morally responsible for the entire ordeal.
Are women such vulnerable creatures who are not responsible for their actions?

 

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