When Drunk Becomes Rape (Because Some Profs Say So) (Update)

That there’s an epidemic of rape and sexual assault on campus is a given, because the White House says so, as do the advocates to end this plague, despite the absence of evidence except their anecdotes.  Perhaps they’re right, but it’s hard to say because the meaning of words used to describe offending conduct have become untethered from any definition.

Not to let lack of definitions or proof of a problem get in the way, the government is forcing the issue by ramming guidelines down the throats of colleges and universities to cure the problem that may or may not exist.  Colleges don’t appear to be resisting. And these changes in the view of sexual assault and rape appear to be filtering through to criminal law.

Two profs, Kathleen Bogle, teaching sociology and criminal justice (whatever that is) at LaSalle, and Anne Coughlin, a lawprof at UVA, apparently recognized the confusion wrought by an excess of passion and a dearth of reason and decided to fix the problem.  Their post at Slate is entitled The Missing Key to Fighting Sexual Assault on Campus, with the subtitle, Universities must make clear when having sex with a drunk person is a crime. 

Finally, someone realizes that vague, overly-emotional, facile, hyperbolic accusations fail to establish either a cognizable or a doctrinally justified line.

If colleges are to reduce the incidence of campus sexual assault, they must have guidelines about when it is a crime to have sex with a person who is drunk. These rules need to be clear to students and to police or administrators who investigate these allegations and decide whether to impose punishment.

Absolutely.  Without clarity, there can be no rules, no matter how many people spew simplistic mantras about “just don’t rape.”

Here’s the proper legal framework: Sex with someone who is too drunk to consent is a crime even if the perpetrator uses no violence whatsoever to force his way. It is a crime even if the survivor does not physically resist or verbally object. It is a crime even if she is not passed out but is conscious before and during the encounter. It is a crime even if she was not drugged or forced or tricked into drinking by the perpetrator but got drunk on her own.

Whoa, wait a sec. How does this become the “proper legal framework”?  Because you say so?  Not only is this posed in the negative, and thus meaningless, but what’s with the use of the feminine pronouns?  And since when does sex with a person who is “not passed out but is conscious before and during the encounter” become a crime?  Isn’t that, well, the way it happens most of the time?

How intoxicated is too intoxicated to consent? After all, many people have sex under the influence of alcohol. The tipsy hookup may be the norm on college campuses. If the perpetrator didn’t use physical violence and the victim didn’t resist him, how can we be sure that the drunken sex was not consensual?

Okay, back down from the soapbox. So yes, that’s the question. And the answer is?

[T]he question is whether, under all the circumstances apparent to the perpetrator, a reasonable person would know that the victim was too intoxicated to give a meaningful consent. Under that standard, the prosecution may win a conviction only by proving that the victim’s intoxication was extreme and verifiable. She has to be way past buzzed or tipsy. She has to be very drunk.

Now I take issue with calling someone a perpetrator before defining a crime, but maybe I’m a bit sensitive about such things. So the proof is based on the reasonable perpetrator’s perspective of “too intoxicated to give a meaningful consent”?  There appear to be two significant problems here, the first being that if the crime is based on what’s apparent to the “perpetrator,” it can only be proven by the testimony of the perp.  And, of course, the perp can’t be compelled to give testimony against herself (see what I did there?).

The second problem is that by saying “too intoxicated,” you’ve said nothing. You can’t define a term by using the term, or adding the word “too” in front of it.

The cases and the literature on rape give examples. For example, a person who is falling-down drunk, too intoxicated to walk. Or unable to talk clearly or coherently. Or too uncoordinated to undress herself. Or sick drunk, slumped over a toilet vomiting or urinating on herself.

And so we’re back to examples to overcome the complete inability to provide a definition?  Even so, there is a huge difference between someone “slumped over a toilet vomiting or urinating on herself” and “unable to talk clearly or coherently.”  I know a lot of folks who can’t do that sober on their best day, but more to the point, is the occasionally slurred word the equivalent of puking their guts out?

As for “too uncoordinated to undress himself,” there are stories that when two youngsters commence “tipsy sex,” undressing each other is part of the ritual. Is there a new rule that each party must undress themselves?  And what if they are not wearing difficult to remove clothing?

But nowhere in these examples does any recognition appear that if one party is drunk, the other party may be as well.  This may not only alter their reasonable perception, but impose a duty that neither party to sex may be in any condition to fulfill.  Does a drunk person have the capacity to recognize that another drunk person is slurring his words?  If they are sharing a toilet bowl for unpleasant purposes, who gets to puke first?

Colleges also must have guidelines for dealing with cases in which both parties were drunk. Here, men are likely to object that they are being disadvantaged by a double standard that lets drunk women, but not drunk men, off the hook for having sex. But this objection rests on a fundamental misapprehension about the role that intoxication plays in attributing criminal responsibility. free card.

Wait another sec.  They start with addressing the “both drunk” problem, but conclude that men are culpable because…men?

Instead, for rape as for other crimes, an offender is guilty if he commits an act that’s an extreme departure from the standard of care followed by reasonable people in the community. The crucial point is that this standard of care is based on the perspective of a sober “reasonable person,” not a drunk one.

Ah. So the problem is that women cannot be held to a reasonable person standard because they’re women.  That seems a rather sexist and offensive posture, but more importantly, makes absolutely no sense at all.  To call it sophistry is too kind. This is the total absence of any pretense at logic, wrapped in a pretty pink bow.

But what if drunken men are the victims of predatory women?

There is one more objection that we often hear: What if the man says that he was so drunk that he also was incapable of consenting? Could it be that she raped him or that they raped each other? It is not clear how plausible this scenario really is. If both people are too drunk to walk or are vomiting all over the place, it seems likely that sex just won’t happen.

Wait yet another sec.  So if a man is drunk, the woman is by definition vomiting all over the place too?

While a new study reports that men say they’ve been raped at a surprisingly high rate and that women are sometimes the perpetrators, men tend not to bring sexual assault complaints. If men do start coming forward, the authorities should evaluate their accusations under the same standards applied to cases involving female complainants.

So they’ve got nothing?  The double-drunk problem is dismissed as either implausible or whatever?

That the “solution” begins from the premise that rape and sexual assault are rampant, before there is a definition of what they are, reflects a fundamental dishonesty toward the subject. But here, two putative scholars who are presumptively not writing while shit-faced drunk offer “the proper legal framework” to an untenable problem that is not only utterly baseless, but wholly irrational.

And yet, with Slate as their soapbox, a great many people will now be certain they know the law, they know what distinguishes a crime against women, because scholars say so.  Coughlin and Bogle should be ashamed of themselves for publishing this tripe, but more significantly, for making people stupider.  The need for clarity is manifest, and they’ve made it worse.

I can’t wait to hear more rational scholars rip them to shreds for having disgraced the Academy.

Update: At The Atlantic, Mary Adkins writes about the disconnect between the legal definition of rape, as she pointedly notes she was taught at Yale Law School, and her feelings of what rape should mean.  She explains how and why women may choose not to resist, not say no, while not wanting to engage in sex in order to maintain internalized control over their victimhood.

In order to avoid victimhood and maintain simple, victimless personhood, women can be extraordinarily, stunningly rational; we can rationalize away acts of violation simply because we don’t want them to have been real. Perhaps if I decide it didn’t happen, it didn’t; perhaps if I decide it doesn’t matter to me, it doesn’t. But other times, victimhood is thrust upon us.

Notwithstanding her confusion about the relative meaning of rational and rationalization, she suggests that the crime of rape should be defined as that thing a woman feels inside, without regard to what she says or does, or what the other person (who is, she explains, stronger and inherently more powerful) perceives.

Her feelings are understandable, and her rationale (not rationalization) makes sense. But she offers no solution to her problem.  Does she contend that the legal definition of the crime of rape is “any act where, in the mind of a woman, a rape occurred, without regard to anything else whatsoever”?  Maybe she does. Maybe that’s the best she can do. But for every reason that exists as to what is required of a criminal law, it fails.

Adkins is entitled to her feelings. She is not entitled to create crimes based of her innermost feelings, no matter how strongly she feels about it.  And if there is any value to a Yale Law education, she should understand just how ludicrous her position is.




39 thoughts on “When Drunk Becomes Rape (Because Some Profs Say So) (Update)

  1. Marc R

    I’d like to think a university wouldn’t codify such satire. It’s mind-boggling the insults to women, gay men, or whoever else that can’t prescribe rational choice to.

    1. Brett Middleton

      Universities codify satire all the time. Just look at speech codes, for example. Or weapon codes.

  2. John Jenkins

    One would think legal scholars could define a crime, you know, with elements and stuff, that could be proven beyond a reasonable doubt. It seems, however, the standard is regret. If the female partner regrets her behavior or decision, then she gets to say she was sexually assaulted irrespective of whether there was force or fraud. It would appear impossible to know, ex ante, whether one’s actions are criminal under that standard, which means it should be void for vagueness. One would think legal scholars understood that, too.

  3. John Neff

    You can’t blame a juror for having a reasonable doubt when there is no sober credible witness. That should rule out criminal prosecution but for political reasons we continue have cases where the punishment is the process.

    It appears to me that some universities have established extra legal tort courts to deal with alleged sexual assaults. I think they know the don’t have the authority to do so but are under intense political pressure to do something. Nothing good will come of that approach in my opinion.

    1. Scott

      I am a paper pusher at a small liberal arts college near Washington DC. Last week we unveiled our “comprehensive” plan for how to deal with title IX complaints and unfortunately my boss told me I was to be a title IX investigator and that she would not accept no. After two days of “training” on how to investigate these complaints, it is clear that 1: the alleged victim is always right. 2: the alleged perpetrator is always wrong (obviously, see #1) 3: if the accused refuses to cooperate because he/she feels the whole thing is BS or for any other reason we are to assume that means they have something to hide and therefore are responsible for what they are accused of. Oh yeah, being skeptical or asking questions like “why the hell did you drink 12 beers in the first place?” are against the rules as well. There are 40+ pages to the document that was created to cover our response to title IX.

      This all seems really excessive to me, but what do I know. I am just a paper pusher.

      1. Beth

        Why would a question like “why the hell did you drink 12 beers in the first place?” ever be appropriate in that sort of investigation.

        I can see asking about how much alcohol was consumed in order to make a determination about how drunk someone might have been. But the way you phrase the question here sounds like an accusation with an implied: If you didn’t want to be raped, why did you …? I can understand why your training needed to make that clear.

        Now, frankly, I am of the opinion that a woman who gets falling down drunk with a stranger is setting herself up to become a victim of some crime or other, but being drunk (or stupid) doesn’t mean it’s not a crime to take advantage of her.

  4. Griff

    This article actually is as clear a statement as I’ve ever seen of the law in my jurisdiction. If a judge read this to the jury during his final charge to explain the concept of intoxication negating consent I suspect a conviction would be upheld :-/

    1. SHG Post author

      Given that you’ve never commented here before, and that your pseudonymous comment is peculiarly provocative, are you a lawyer? What jurisdiction would that be? To write that something is “as clear a statement as I’ve ever seen,” when no one has a clue who or what you are, is utterly useless.

      That said, the “too intoxicated to consent” can be a jury question in rape prosecutions, but this isn’t a legal framework, rule or clarification, which is the point of the Slate post. You may be conflating the jury question with something that might conceivably be useful in distinguishing criminal conduct, since your “as clear a statement” neglects to say statement of what.

      1. Griff

        Here’s how juries are instructed in Massachusetts:

        “In this case, there has been evidence that the complainant had consumed alcohol. If, because of the consumption of alcohol or for some other reason, a person is so impaired as to be incapable of consenting to sexual intercourse, then intercourse occurring during such incapacity is without that person’s consent.

        “If you find that the Commonwealth has proved beyond a reasonable doubt that the complainant was so impaired as to be incapable of consenting as I have just described, and if you further find that the Commonwealth has proved beyond a reasonable doubt that the defendant knew, or reasonably should have known, that the complainant’s condition rendered her incapable of consenting, then the Commonwealth has proved the element of lack of consent, and, on the element of force, the Commonwealth need only prove that the defendant used the degree of force necessary to accomplish the sexual intercourse — that is, to effect penetration.”

        See Commonwealth v. Blache, 450 Mass. 583, 595 n.19 (2008).

      2. Griff

        On the latter part of your comment — yeah, I meant as far as the jury question goes. But that’s what the legal rule is — the jury is instructed “this is the law” and then they decide whether you’re guilty. I don’t know how else you would “distinguish criminal conduct” other than by figuring out what the jury will be told when they have to decide whether you’ve committed a crime.

        1. SHG Post author

          The jury charge is, how to put this, unhelpful. Someone is “too intoxicated” if a jury says so based upon, well, they says so. This is the absence of guidance as to what conduct is lawful and what is not, lest there be a jury verdict between “let’s have sex” and the act of penetration.

          The question is what constitutes “too intoxicated” to consent so that a person can conceivably know what she can and cannot do. Your reference to the charge not only fails to illuminate, but obfuscates the question. And, as far as jury charges go, it is utterly worthless. Read the first paragraph of your charge a few times and ask yourself, does this provide any guidance whatsoever or is it completely circular and meaningless?

          Then ask yourself, if a reviewing court was to answer the question of whether the conviction was based on legally sufficient evidence, what doctrine or rule would it apply. That, not the charge, is the law. Or would the appellate court simply defer to the jury finding regardless of whether there was any basis for it whatsoever?

          Edit: It appears from the Blanche decision that MA has a long way to go before addressing anything remotely resembling a fully conceived rule of law on this issue. So, you may be right, only in the sense that you have no actual law as yet, and it remains a black hole of meaninglessness.

          1. Griff

            I’m not defending the particular language here (my initial comment was meant to be descriptive, not normative), but the problem you’re talking about isn’t singular to this context. If a defendant is charged with OUI, the jury is told to decide whether she was sufficiently drunk that it impaired her ability to operate a motor vehicle safely, and then they have to decide. If a defendant raises a heat of passion defense to a murder charge, the jury is told that she’s only guilty of manslaughter if the circumstances would provoke a reasonable person to the extent that her capacity for reflection or restraint would be overwhelmed, and then they have to decide. No matter the crime, the person is guilty or not because the jury says so after hearing what the legal standard is, in whatever words (deplorably vague or not) the courts or the legislature have decided should be given to explain it.

            And when the court is reviewing the conviction on appeal, what they do is recite that legal standard, recite the evidence, and then say “a reasonable jury could conclude that the standard was met in this case.” For example, here’s the discussion from the Blache case:

            “An incapacity instruction was warranted on the evidence presented in this case. Several witnesses who observed the complainant shortly before the alleged rape took place testified that she exhibited signs of extreme intoxication, including falling down, behaving combatively, driving into a fence and the side of a house, and ‘pass[ing] out’ for a period of time. The complainant herself testified to significant gaps in her memory. Furthermore, the complainant’s blood alcohol level several hours after the alleged offense tested at 0.14 per cent, and there was expert testimony that, according to a retrograde analysis, her blood alcohol level at the time of the incident would have been between 0.176 and 0.240 per cent, a level likely to produce disorientation, loss of judgment, impaired perception, lethargy, imbalance, slurred speech, impaired comprehension, and confusion. Although the defendant points to countervailing evidence that the complainant was able to walk steadily, talk comprehensibly, dial the telephone, and make decisions regarding having her vehicle towed, the weight of such evidence was for the jury to determine. If any reasonable view of the evidence supports an instruction, it should be given. Regardless of the existence of countervailing evidence, an intoxication instruction was warranted because there was evidence from which reasonable jurors could conclude that the complainant was impaired to the point of being incapable of consenting to the sexual encounter.” 450 Mass. at 598.

            I agree that the standard in this particular instruction is vague and could use some work, but at the end of the day the jury is left to sort out whether the defendant is guilty based on their own (here an appellate judge would add “common-sense,” while I am more inclined to say “idiosyncratic”) interpretation of the language of the jury instruction. All I meant to say is that the actual legal standards in use in courts around the country sadly aren’t any better (and in many cases are worse) than the Slate article you linked here.

            1. Griff

              Seeing your edit, I’d say I basically agree; that was more or less what I meant to say in the first place. Sorry to have been unnecessarily elliptical in the initial comment.

            2. SHG Post author

              That’s why I anticipated, in response to your initial comment, that you were referring to a jury charge, which circumvents guidance/rules to shift the responsibility to come up with a standard to a jury.

              Now that we’ve fleshed this out, did your initial comment help to illuminate anything or to make things worse? Was that your purpose? In retrospect, would you have tried to make a very different point with the same information?

              Are you getting this?

            3. RAFIV

              Scott, try and remember that he’s a Masshole like me. We’re all a little special up here. Just special unique snowflakes of eloquence and erudition. Well, that’s what my mom and therapist tell me anyway. And they wouldn’t lie. Would they?

            4. SHG Post author

              When I read a comment, I’m often left to ponder why someone felt it worthwhile to write it. Too many words that need to breath free? Disagreement? Massholishness? What?

              Too often, someone writes a comment that undermines their point (and mine, in the process) as if they disagree when what they are trying to say is that there is something out there that is contrary and wrong or confusing. They may think I’ll understand their point, even if poorly expressed, but that’s the spotlight effect, that they are the center of the universe and therefore I (and anyone else who reads their comment) will inherently understand their motivation no matter how they’ve chosen to express it. That ain’t how writing works. That ain’t how comments work. If someone can’t make their point clearly, then they should anticipate backlash. I take no blame for responding to other people’s badly expressed thoughts.

              And you Mass drivers suck. You’re worse than Jersey. Just wanted to say that.

  5. Marion Gropen

    I suspect that juries will refuse to convict if the victim (male or female) isn’t “falling down drunk” and the victimizer (male or female) isn’t considerably less drunk, or sober.

    I very much doubt that any of us would think that someone who was unconscious could consent. I suspect that almost all of us would agree that someone who was so drunk that they couldn’t walk unassisted or make any kind of sense (compared to their normal state), etc. could consent.

    The fuzzy line, and this is where we do need to get a good solid definition, comes when the victim and victimizer are both pretty drunk, but more or less functioning.

    What we need to do, not with laws, but with education and a social change, is to push college kids toward more responsible behavior both with respect to alcohol and sex. And if we can’t do that quickly, then we need to start advocating for something like a designated driver — call it a designated voice of reason.

    And we need to stop glorifying “notches on the belt” instead of meaningful relationships. I’m not sure that “slut shaming” was ever a good thing, but our society does still do it to girls and women. Maybe sauce for the goose works for the gander?

    If we get the social issues sorted out, the laws will be easier to define and to enforce.

    1. SHG Post author

      What we need to do, not with laws, but with education and a social change, is to push college kids toward more responsible behavior both with respect to alcohol and sex.

      Responsible behavior is always usually good. But what makes behavior more responsible? What is responsible behavior? More version? Your version? The Puritans version? The feminists version? The neo-feminists version? Is a theme developing here?

      And if we can’t do that quickly, then we need to start advocating for something like a designated driver — call it a designated voice of reason.

      Meh. Why not chastity belts? Or require no one under 25 be allowed to drink without a parent or guardian present? You can’t micromanage other people’s lives, no matter how much you think your judgment is better than theirs. Or their “designated voice of reason.”

      1. Andrews

        Much as I hate to disagree with SHG, how does “both pretty (?) drunk, but more or less functioning” turn sex into rape under any circumstances? Youre beginning to sound like parent who want to keep his child on a leash.

        By the time someone is in college, old enough to drink alcohol and capable of sex, they are capable of making their own life choices. If this is one of them, we can approve or disapporve of it, but it is not rape under any circumstances. And that’s the point. This isn’t a fuzzy line at all. They may regret it in the morning, but it’s not rape.

  6. Bruce Coulson

    It’s not surprising that colleges and universities can’t clearly distinguish between ‘rape’ and ‘bad judgement’. They (universities) have no experience in opposing unwanted intrusions.

  7. Phoe

    I get your point. I do. But at the same time I feel like you’re really working to split hairs in order to argue the “when is too much, too much?” question. First, I think you’re absolutely right about the use of gender pronouns. Women are not the only victims of rape. However, women are the most common victims of rape, every day, and at this very moment. And the rapists are most commonly male.

    Is it possible that these guidelines are actually not designed to mess with the minds of men, but to protect men and women from the everyday reality of sexual assault as well as the many consequences of rape. Here’s the deal, if you’re having sex with someone you are obligated to confirm that they want to have sex with you – at every moment of the act. If your partner can’t tell you he/she is good to go, then you shouldn’t. If you have to drag her into the bed because she’s too intoxicated to walk, she is too drunk to consent. If he/she was ready and willing, but then passes out, you should not continue.

    I wish someone would remind gentlemen that they are not guaranteed sex just because she is into you, nor must they always push to get all they can out of any sexual encounter. It is always better to be safe and when necessary regard your partner as too drunk for sex and simply wait for another opportunity rather than risk becoming a rapist or hurting another person. Even if you “thought” it was okay, unless you KNOW it’s okay, it isn’t. It surprises me that you are so vocal about your frustration with the law surrounding sexual assault, and not about the actual occurrence of sexual assault.

    [Ed. Note: I’ve added in paragraph breaks to make this comment readable.]

    1. SHG Post author

      You say you get my point, but your comment suggests that you don’t. If rape is “drunk sex” and both parties are drunk, then you are absolutely wrong that women are more commonly the victims and men more commonly the victimizer. That’s the point. When they’re both drunk, neither/both are equally culpable as neither can consent. This isn’t a feature, but a flaw. It is irreconcilable.

      Frankly, this “men should confirm in a notarized statement that they have the women’s full, knowing consent to have sex” belief is nonsense (forgetting about any notion of mutuality, which, let’s be honest here, is total bullshit). We are not talking about forcible rape, or sex with an unconscious person. We are talking about manufacturing a crime out of mutual conduct based upon post-hoc regret (because if the woman is happy with her choice the next day, she won’t cry rape) that presumes women to be so utterly incapable of taking any responsibility for their conduct and men manufactured into criminals based upon post-hoc regret. So no, I do not accept the premise that women are so weak, useless, irresponsible and fragile that they should not be held to the same standards of behavior as any human being, and I’m offended by women who think so little of their own gender that they think otherwise.

      And as for why I am more vocal about the law than the “actual occurrence of sexual assault,” it’s because this is a law blog, and the “actual occurrence” has become a lie perpetrated by those who want to move the goalposts to manufacture a crime where none exists or it vindicates a political agenda.

      You asked.

  8. A Big Girl

    Well, looks like I’m about to burn my membership card in the Mary Anne Franks Victorian Delicate Flower Society. I’m a big girl. I can go to bar and have a few drinks because I want to. I can see a cute guy when I’m half in the bag and want to have sex. I like sex when I want it, and when I don’t, I can say no, whether I’m stone sober or drunk. And if I don’t say no, it’s my fault, not his. And if he doesn’t say “yes,” I don’t give a damn if he whines about it the next day. He had his chance, just like I did.

    Who are these whining women who want to impose their Puritan mores on me? Deal with your own issues and I’ll deal with mine. If I want to drink, I’ll drink. If I want sex, I’ll give it the old college try, and chances are pretty good I’ll get it. And that’s how it should be.

    Don’t do me any favors. If you’re too delicate to be a big girl, that’s your problem. Don’t tell me I’m being irresponsible. I’ll do what I damn well please, and I’ll take full responsibility for what I do. And if I make a choice I regret the next day, I’ll be wiser for it. So fuck all of you and stop telling me how I’m supposed to behave or how I’m someone’s victim. I am no one’s victim.

  9. A.J. Simonsen

    I’ve heard of the term enthusiastic consent and I really like it. For guys, I think it can be a good mindset to observe signals and make sure they are receiving an unambiguous one. But I don’t like it because it’s been presented as women giving guys consent. Eww.

    A phrase I also don’t like is “too intoxicated to consent.” Because it fails to take into account the signals given, received and accepted by both parties while getting that intoxicated. Would we consider a phrase like “too intoxicated to think to ask for consent” and let an accused perp off the hook?

    On the other hand, I’d suggest that “too intoxicated to consent,” does apply when 3rd party(s) join in.

    If we really want to do something about this issue, all of our terminology and its presentation needs to apply to both genders and should shoulder the burden of responsibility on both genders equally. And it needs to be able to differentiate between two drunk kids and regret, and gang rape. Right now it doesn’t.

    PS: First time to your Blog, enjoy it!

    1. SHG Post author

      Glad you enjoy it, but please bear in mind this is a law blog, not a “tell me what meaningless stuff you like” type of blog. While I have no issue with non-lawyers reading or commenting, if it doesn’t contribute with any degree of illumination to the legal discussion (or isn’t otherwise sufficiently funny to give everyone a good chuckle), it’s probably not worth writing a comment.

      This comment, for example, was not worth writing.

  10. Erik H.

    This is really a type 1/2 error-assignment problem, right?

    We have a bunch of drunk-as-shit people who claim they were raped, and another bunch of drunk-as-shit people who claim they had sex. Since they were both drunk and since it’s damn hard to tell what happened, it’s essentially a question of figuring out what %age of the accused folks you want to end up in jail, and writing the laws to produce that result. (That changing the %age is the underlying goal of many of these authors is reasonably clear from the constant comparison of “reported” and “convicted” rapes. And yes, I know, that is not a good metric.)

    But in certain respects the rise of college rape is akin to the rise of autism, which is to say that it appears to be a byproduct of increased classification (widening the conduct which is called rape) and also increased investigation (getting an increasing %age of that conduct to be reported.) Oddly enough–or perhaps not, in this sociopolitical climate–there hasn’t been a concomitant DECREASE in the claimed %age of UNreported rapes (I have always, always, wondered how they know that one) although you would expect it to have gone way down.

    One further example of an unsolvable problem: the “first to accuse” gaming issue. If you look at both Victim and Accused and if they are both shitfaced drunk, then:
    1) Both parties got drunk intentionally;
    2) Both parties have impaired judgment;
    3) Both parties have impaired ability to initiate or consent to sex;
    4) Only ONE party–Victim–is legally absolved of the consequences of her (it’s usually a “her”) choice to drink.

    IOW: If you accuse first, then your alcohol is irrelevant under most state’s codes; you are still classified as a victim if you were too drunk to consent. But your partner’s booze is relevant: the “reasonable person” standard makes no allowances for HIS reduced ability to gauge the intoxication of Victim resulting from HIS voluntary drunkenness. If “he’s too drunk to know that you’re too drunk to consent” then he’s goin’ to jail. So: Drink all you want, so long as you’re the first one to call the cops….

    1. SHG Post author

      At least breathalyzers would allow for an objective measure. A bad measure, for sure, but an objective one.

  11. Fubar


    … The double-drunk problem is dismissed as either implausible or whatever?

    … But here, two putative scholars who are presumptively not writing while shit-faced drunk offer “the proper legal framework” to an untenable problem that is not only utterly baseless, but wholly irrational.

    Professors Bogle and Coughlin deserve more love. They are doing their level best to provide answers to Jimmy Buffett’s longstanding question: “Why don’t we get drunk and screw?”

  12. Queen Bitch

    Did you or one of your fat white clients get “falsely” accused or is this just because no one would fuck you in college unless drunk out of their skull. Shame they didn’t have date rape drugs then right?

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