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Too drunk to...

Two people get drunk. (It happens all the time.) While too blotto to know any better, one of them has an incredibly stupid idea. The other agrees with the idea, and they act on it. When they sober up, they realize just how stupid an idea it was. In fact, a crime was committed. But only one of the drunks is arrested; the other is immediately labeled "the victim" and put on the opposing side from their drinking buddy.

Inexplicable? Not if the "incredibly stupid idea" was to have sex.

Now, I'm not interested in discussing sexual politics or the nature of rape or just what constitutes date rape. This is a simple question of law that has bothered me off and on for almost two decades, most lately revived by the William Kennedy Smith scandal (take II). If a man and a woman both get equally drunk, both agree (drunkenly) to have sex, and both regret it after, why is the man held more liable than the woman? "Too drunk to say yes" outweighs "too drunk to say no?"

This has more far-reaching implications than I've heard others discuss. If women are to be held to a lesser standard of responsibility when drunk than men, where else should they be held to a lesser standard? And if women are held to this lesser standard, does this mean they are lesser citizens? We hold juveniles to a lower standard than adults, but withhold corresponding rights and privileges. Should this carry over to women?

I'm not looking to start some huge fight here, just some serious discussion. Under the current law, men are being held to a higher standard than women are. Is that right? Should that stand? Are there genuine reasons why this should stay unchallenged?


(Who, for various and sundry reasons, largely medical, has never been drunk in his life)


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Comments (28)

QUOTING: " I'm not looking ... (Below threshold)

QUOTING: " I'm not looking to start some huge fight here, just some serious discussion. "

WHAT? Of course you posted this to rile people up. I'm not saying you are necessarily wrong but rather that by the end of the day there will be 50 ugly comments on this subject.

I used to make a similar argument. In the military we have a decent retirement benefit system to compensate for serving 20 plus years where you can be ordered at any time to go anywhere may have to sacrifice your life. Well, up until around 1978 women were not assigned to ships at all and not to combatants until 1995. However, they could do a 20 year career on shore duty and receive the same compensation.

Okay, now we have a hornests nest poked. Let's see what follows.

I am a woman and I have alw... (Below threshold)

I am a woman and I have always wondered about this. If a woman gets drunk and drives and hurts someone she is liable in the same way a man is. Why *does* two drunk, stupid people equal one perpetrator and one victim?

Sorry. Meant stupid-at-the... (Below threshold)

Sorry. Meant stupid-at-the-time, not actually that they were stupid people.

I wonder if any man who reg... (Below threshold)

I wonder if any man who regretted having sex with a woman can accuse HER of rape.

But women take advantage of a MAN while he is intoxicated? Nahh, never happens according the the Femnazis.

Thanks, Bow, for your contr... (Below threshold)
Jay Tea:

Thanks, Bow, for your contribution towards keeping this discourse at a polite, civilized, rational level.



I think what you are talkin... (Below threshold)

I think what you are talking about here is personal responsibility and I agree. Most women cringe at these high profile rape cases because in each
(Kobe Bryant, Mike Tyson, William Kennedy) you have to wonder why it is that these women put themselves or allowed themselves to be put in such a situation, yet claim no responsibility when things go wrong. It's demeaning and unfair to the countless women who have been raped by no fault of their own.

I don't think you can reali... (Below threshold)

I don't think you can realistically have a discussion like this without going into the nature of rape and its variants because that's exactly what the topic is about: why the man is being charged with rape when both man and woman seem equally responsible in allowing this act to follow througth. The big question asks "is this rape or not", and to try and discuss this without talking about what constitutes rape is just trolling for flames.

Someone very close to me was a victim of date rape and though it was a terrible thing to happen, her therapis said that her case probably wouldn't hold up in court since she allowed herself to get drunk, thus wilfully putting herself in a dangerous position. And its true. She in no way consented to sex (said "no" multiple times), but did consent to drinking which lowered her ability to reason. So no justice for her, there's your sign.

But you are ASSUMING the wo... (Below threshold)

But you are ASSUMING the woman is consenting while intoxicated. The cases cited are instances where the woman protested, said NO repeatedly, etc. or did NOT consent. That is what is necessary for rape to be proven or else if the woman is unconscious and cannot possibly give permission.

I do not believe there are convictions based on women giving consent and later claiming rape because of intoxication. No means no even if both parties are drunk. And being passed out is not giving consent. Neither is having a hand on your throat so you cannot speak. I believe you are assuming far too much and just taking consent for granted. Guess that is exactly how lots of date rapes happen, assuming consent. But once consent is given, I have never heard of a charge of rape being brought against anybody. Consent can be withdrawn, however, as in the case of the sports commentator biting the woman all over her back. Yes does not have to mean yes to any and everything. Going into a room with a man is not consent, either.

But I certainly NEVER heard of rape charges being brought in cases of consensual sex because of intoxication. Could you be more specific and cite some actual cases??

Anna (and others), it appea... (Below threshold)
Jay Tea:

Anna (and others), it appeared I managed to step on my own argument and overlook my own best evidence. In college, I had it repeatedly drummed into my head that "a drunk woman can NOT give consent" to sex -- if she was drunk, it was by definition rape. There was (and still is) no similar rule regarding drunken men.

Crud, I can't believe I forgot to include that in the initial posting...

And Bow: you're still an asshole. Just in case you were wondering.


I think you are completely ... (Below threshold)

I think you are completely correct. I had a friend who was raped at gunpoint ... and I don't care, date rape just is NOT the same thing. Say what you will. Call me ... paranoid, but I think there is a large sector of men that cannot be trusted when drunk- they revert to that primal state. Unfortunately, there are no identifying marks to tell who can and who cannot be trusted ... therefor you are all suspect at the outset (as in the case of "actual" date rape.) It's a woman best defense to take this approach, I think. For the most part, I think stupid/drunk sex (non-date-rape variety) is a result of our society ... a mistake on both parts, but certainly not criminal. If a woman is wearing thong underwear, gets drunk, and goes home with some guy ... is she innocent and he guilty? I think not.

That's a good point about t... (Below threshold)

That's a good point about the definition of rape. Is being forced to have sex with someone you were perfectly happy to spend an evening with (and may even have had sex with before, willingly) the same as being dragged from your car at knifepoint? Date rape is much more often about horniness than violence. Conversely, most women that are raped by strangers are afraid they are going to be killed as well. That's why there is one school of psychological thought that says to just lie there and take it; you have a better chance of living through it.
A fear of death is not usually a factor in drunken date-rape.

At the risk of being accuse... (Below threshold)

At the risk of being accused of nitwittery, I have a radical suggestion. Don't get drunk. A little self control never hurt anyone or caused anyone to commit a crime.

I think the point is "too d... (Below threshold)

I think the point is "too drunk." A person doesn't make the decision to have sex by simply getting drunk. So if person is too drunk to say YES or NO then it should be no. This is the same mentality with dudes I knew in college that thought it was okay to have sex with chicks too drunk to even speak.

Or the vultures who go after women too drunk to know what's going on. It's no different than someone putting a date rape drug in their drink...


That's retarded.

There are two areas of the ... (Below threshold)

There are two areas of the premise that need to be discussed individually, before any sort of meshing sense can be then, also, discussed.

One of the two issues is the social "understanding" (moreorless, a presumed behavior by most humans in most, if not all, societies) that a female is to be treated with more leeway (with less harshness or severity that can be interpreted as being more indulgent) than a man.

The second of the two issues is the issue of adjudging or evaluating blame and responsibility to that sexual interaction of two persons inebrieated, sexually involved and then sober and regretful about it later.

About THE FIRST ISSUE -- females being regarded by (generally) most of humanity with less presumption of blame (and, therefore, with less responsibility for the conditions of thier lives and their actions with and about others, as is done, as you suggest, to a degree of similarity, with children).

--About this first issue, I really believe the general assumption is based upon the fact that males are more physically powerful/capable than most women (if not all women as a standard) and that, biologically, there is a "second standard" of accomplishment for females, secondary to that for males, purely derived from our biological requirements and capabilities as a species over time. Males are capable of a level of physical activity that females aren't. Thus, we have the very noticable differences between the two genders over time and each has developed specialized social functions based upon those differences.

I remember my first marathon and taking off from a starting point, running up the first hill. All the males in the same starting pack just whisked by me in something equivalent to a second gear on a vehicle, barely slowing down, barely showing any effort, while I had to really use the low gear and slowed down enough to see all the males running past, some even looking over their shoulder with a smile as they passed.

I was fit, a relatively accomplished runner -- it wasn't a matter of fitness or not but of general muscle mass and size. Males have larger skeletons, more muscle and skeletal mass and a whole lot more testosterone than females do, so they can take those hills in second gear without slowing down while females can't. It's just physiology.

So, anyway, the point is that -- as a species -- we moreorless understand the general capability differences and act accordingly: men are more capable when strength, size, reach even, aggression and to a great degree, unemotive reasoning are necessary (shooting food for dinner, hauling it home from the woods, answering a foul banging on the door in the middle of the night, building the house, etc.) and females are more capable at more emotive issues that don't rely so much on being able to run up hills without breaking a sweat (walking is best with children for the most part and you can't run up a hill with a baby in your arms unless it's necessary for survival and you can risk harming the child inorder to keep you both alive, is what I'm saying).

Anyway, I believe the very physical differences and related capabilities between the genders has brought about this necessary differentation in how males vs. females are evaluated. I can understand that a lot of females might turn ballistic at the idea that there's an inherent difference in capability between the genders -- with our contemporary established social structures and technology, there's not so much of a difference as to intellectual capability -- but the physical differences still exist and still effect how we evaluate and rely on others.

About the "too drunk to say yes" vs. the "too drunk to say no" (second issue here), again it's generally assumed that a male as the aggressor in a sexual relationship can and does exercise more responsibility over the act itself. A woman can literally pass out from drinking while a man can still engage that woman sexually -- not nice, not a fair thing, but it happens and that's what many people try to distinguish when they try to assign guilt or evaluate culpability: whether the male was "too" aggressive in the act.

Jay,I'm sorry you ... (Below threshold)


I'm sorry you found my position repugnant.

That's probably because you don't understand when someone is agreeing with the so-called point you were making in your post and when someone is not. You didn't tell us you were a big man-hater who believed that because men had penises that they were automatically to blame for sex that happened when both parties are drunk..

My point is that women are smart enough and "person" enough to be held to the same standard as men. If you don't believe they are, and if that's repugnant to you, then I find YOUR position repugnant.

I agree that if a woman says NO, then the man should back off no matter how drunk he is. As a person who has been drunk, I know enough to know that NO means NO.

In your scenario, if no one says no, then there is no crime committed. Both people are drunk in your scenario not just the woman being supposedly "taken advantage" of by the man.

Its moronic to think that men should play the perpetrator and women should play the victim role when, in your scenario, both were in the same mental state.

Michael, let me spell it ou... (Below threshold)
Jay Tea:

Michael, let me spell it out for you, in very clear terms, so you can grasp it. I'll even type it slowly for your benefit.

I said that, in THESE VERY CAREFULLY DEFINED CIRCUMSTANCES, the law and society seem to have a double standard. You took that and ran with it, trying to say that I endorsed such beliefs as (and I'm quoting you in your entirety):

"Men cannot be victims. When it comes to sex, the woman's version of what happened will almost always trump the man's.

William Kennedy Smith may or may not have sexually assualted the "victim" in this case. I don't know. What I do know is that, no matter what, the chips are already stacked against him, big time, because he has a penis.

How many men are serving years in Political Correctness prison??

My intention was to start a rational discussion on personal responsibilty and societal/legal double standards. I certainly did not intend to encourage, and will not let pass unchallenged, your attempt to hijack my premise into a "evil women have wrongfully locked up helpless men with the help of the sinister legal system" whine.

And for the record, Michael, I feel the need to rebut at least part of your venture into personalizing your attack. I am not a penis-hater. I am rather fond of one in particular -- my own -- and utterly indifferent to all others.


Jay,In your own wo... (Below threshold)


In your own words, "I was focusing on a single aspect of the legal system (and, by extension, our culture) that I found troubling."

But it seems to me that your own words were meant to trap people into a stated position that you don't really agree with - that for BOTH drunk persons, "the incredibly stupid idea was to have sex."

My position is that NO means NO - even when you're pissed drunk anyone can understand that, (and I don't particularly care what anyone says to the contrary. No means No, even for drunks. If we make them responsible for driving a car, we can make them responsible for rape.)

It seems to me, and please correct me if I am wrong, because I don't want to get into a stupid argument with someone writing on an acquaintance's blog - that you stated a position with which you do not agree to railroad others into agreeing with you so that you could cut them down a level or two.

In any case, I was answering your original post, "If a man and a woman both get equally drunk, both agree (drunkenly) to have sex, and both regret it after, why is the man held more liable than the woman? " You've all but admitted that this is the case. I was just explaining the politically correct atmosphere in which I believe this occurs.

Maybe we're misunderstanding each other. I hope so, because I would hate to think that someone whose opinions I generally agree with would try to trap people into responding to an opinion he doesn't even agree with simply to have someone to attack.

In any case, I still agree with your original post.

Jay,And there's no... (Below threshold)


And there's no need for you to be condescending.

Michael, I've put a lot of ... (Below threshold)
Jay Tea:

Michael, I've put a lot of time and effort into establishing a reputation for honesty here (and if you've read this site for very long, you know I've admitted some pretty unflattering things about myself), so I'm going to say this straight out, without any Kerryesque, Clintonian evasions or qualifiers:
I had absolutely no intention to "trap" or "railroad" anyone with my initial posting. The fact that I initially didn't include the "drunk women can't consent" bit in the first place (which INSPIRED this whole line of thought almost 20 years ago) I chalk up to stupidity, ineptitude, a rush to get to work, and human fallibility. I wrote a whole piece last weekend about my screwing up in postings, and just now posted a piece without a title (then went back and changed it).

I'll continue to be honest with you: I don't like what I call the "whiny male who couldn't keep his pants zipped" attitude I thought I picked up from your posting. I find it personally insulting as a man when another man says it's not his fault he acted on his impulses -- I can control myself, and I don't like people saying that I shouldn't simply because I am a man, too. I take it as an affront to MY manhood. But under no circumstances did I "set you (or anyone else) up" to later jump on.

You misunderstood my initial posting. I accept the responsibility for that, as it was my error that led you to that reasonable (but incorrect) interpretation, and I apologize for that error.

Now I think we've both said enough about this sidebar. Unless you still have issues with me, I consider the matter closed and carry no ill will. I hope you will do the same.


Jay,I think we agr... (Below threshold)


I think we agree 100% on your main point, which I apparently misunderstood. And, like you, I consider the matter closed.

If she's drunk, she's compl... (Below threshold)

If she's drunk, she's complicit. She's still responsible, just as if she got behind the wheel of a car drunk and killed someone, u wouldn't say, Oh the poor thing, she was drunk.

Feminists have done real victims of violent assault a disservice by extending the definition of rape to the point of nonsense. Ditto the Kobe case: a women who picks up a strange man in the middle of the night and goes back to his hotel room is consenting to sex (and using heinous judgement).

I've sat here looking at t... (Below threshold)

I've sat here looking at this thread thinking I had the good sense to stay out of it. Poop.
Here is my problem. In the absence of clear evdidence of physical force or threat of force, a rape case hinges entirely on the testimony of two people. Except, of course for gangbangs, orgies and circuses but let's leave that alone, please.
The facts are not in dispute, two people bumped uglies. What is in dispute are which of two words were uttered, with no, zero, collaborating evidence or witnesses.
Even in cases where it is absolutely clear that one or both of the ugly-bumpers had gone past the limit to where consent is possible, forensic science is insufficiently advanced to prove which came first, the excessive intoxication or the ugly-bumping. Unless there are witnesses to the events leading up to the ugly-bumping, of course.
It is for these reasons that guilt or innocence is decided as a matter of opinion, who, in the opinion of the various authorities, from the investigative cops, to the prosecuting attornery and judge, to the jury, is more believable.
Wish I had an answer, it's a bad state of affairs. It's a situation where the guilty go free and the innocent are punished.
Short of video-taped consent, what's the answer?
Glad I'm old and married.

I thought it was "innocent ... (Below threshold)

I thought it was "innocent until proven guilty". In most cases like Peter mentions, there can never be proof. To me that means you don't bring the case.

We face a choice of injustices: assume men are sexual aggressors and prosecute them based on nothing but a woman's word, and hence guarantee we will sometimes see lies told and men abused. Or else admit that such he said-she said cases can never be decided fairly, and hence guarantee that some rapes go unpunished.

Barring widespread social problems, I think we generally do better when we err of the side of letting the guilty sometimes go free rather than risk jailing the innocent. There are many other measures that we can take as a society to ensure that people are not the victims of sexual predation.

While this position is heav... (Below threshold)

While this position is heavily debated in the PC areana on campuses, I still just do not see lots of actual court cases being brought based on this claim. The Wm Kennedy Smith one is of interest because this is not the first woman to come forward with claims about him. We also have Michaeal Skakels comment that as a Kennedy cousin he had nothing to worry about because Kennedy men never go to jail for killing woman. Guess he was wrong about that one.

But this is a real dilemma and one that would have to be addressed on a case by case basis. And where do date-rape drugs come into this? Had someone try that on my sister and much to his surprise instead of conveniently passing out, she had a grand mal seizure!

So yes, there are women who would use this as an excuse and cry rape. There are also predatory males who would take advantage of a woman too intoxicated to respond one way or another. People do bad things.

This is a question with no simple solution and one answer does not fit all circumstances. Neither sex gets a free pass. Has to be based on case-by-case situation. But one would also think that given the attention and publicity on campuses and elsewhere today, both parties would use a bit more discretion. It is not as though either one has no idea of what can happen and the ugly consequences.

Casual sex becomes more of a danger all the time and not just from the risks of STD but legal consequences such as this. Don't think it is worth it personally. How hard can it be to bother to establish at least some sort of rudimentary relationship at least? Or ask "Are you sure?" I am just too old for all of this with kids in college now but damn, even in the sixties we didn't have to get this wasted! Maybe you kids need to cut back a tad of the booze or whatever. Ever hear of learning your own limits? Adults, if that is what you consider yourselves, are supposed to have some self-control. Those who routinely drink until they do not have any might want to consider a few AA meetings or get a grip on that first as the sex things seems to be a secondary problem.

Just saying. . .

Arguments for "contributor... (Below threshold)

Arguments for "contributory negligence" in rape are nothing new. Call me old-fashioned, but despite confusion caused by the sexual emancipation of women, rational bases underly the disparate treatment of drunk girl and drunk boy.

The distinction is drawn for a few different reasons of reasons. One is, women have more at stake, both phsyically and in reputation. The default position of a woman's consent-o-meter is "NO".

Men are not supposed to take advantage of a woman who is put at disadvantage by intoxication or other disability. The also law takes into account the disparate physical strength of men and women and the possibility of man to overpower woman, and the understanding that sex in general requires active penetration of the female by the male.

There is rape, aggravated rape, rape and abduction...
It actually used to be a law against a woman's protector (her husband or father).

Saying "date" rape is not the same as "stranger" rape is true, but the stranger rape usually involves other crimes
or aggravating circumstances that are already acknowleged by law to exist.

Sorry for not proofing, tha... (Below threshold)

Sorry for not proofing, that was totally off the cuff and it shows.

You're a pig on so many lev... (Below threshold)

You're a pig on so many levels.

The delightful thing about ... (Below threshold)

The delightful thing about old geezerdom is that these questions become an academic rather than actual worry. For men that vanished youth means that becoming sufficiently drunk to do something so stupid means that one is incapable of doing something so stupid. A small consolation.






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