When Liquor Touches Lips

When a putative advocacy group put out a flyer to freshmen that said, “if she has touched alcohol, do not touch her,” it was a terrible message.  In a system replete with vague and meaningless language, this fed the monster, validating the very problem that needs fixing.  And indeed, the College Fix twitted a poster from Southeast Missouri State University to the same effect:

No Alcohol

There is universal agreement that any female (though not male) who has passed out is incapable of giving consent to sex. But as the spectrum of reaction to alcohol or drugs comes closer to the sober end, it becomes increasingly problematic.  The word used to describe a woman who cannot consent is “incapacitation.”

What is incapacitation?  That’s impossible to say.  It usually described by either specific instances of conduct (“if she’s puking her guts out, that means she’s incapacitated”), which offers no guidance when she’s not puking her guts out, or when she’s done puking her guts out, or before she’s puking her guts out.

The underlying rationale is that a woman who is so drunk that she cannot formulate knowing, intentional and voluntary consent, cannot consent to sex. This is a dubious standard, as the incapacity to consent doesn’t mean she would not consent, but that she cannot consent.

To put this in context, consider a person who fully consents, enthusiastically desires to engage in conduct, but wasn’t specifically asked beforehand.  This person can truthfully assert that it was non-consensual under the Affirmative Consent standard, because she never overtly expressed consent.* The objective standard is not met, although the subjective standard is fully met.

The problem is reminiscent of drunk driving, which was determined by the objective inability to perform the tasks necessary to safely drive a car before the law turned to Blood Alcohol Content as a proxy, an inadequate measure but a convenient one for law enforcement to prove. Sexual incapacitation suffers from a lack of definition and no objective basis.

What is clear about incapacitation is that it’s not when there is “liquor in the cup,” or when “she has touched alcohol,” any more than it would be a crime for her to thereafter get behind the wheel of a car. Yet, the notion that any alcohol (or drugs, which don’t seem to find their way onto posters or flyers as much) per se vitiates consent is spreading and being used as the hard and fast line.

This is nonsensical.  Whether it’s one beer or three, drinking alcohol does not automatically mean that a person is “incapacitated” and incapable of giving consent.  Perhaps this is an effort to re-introduce temperance into college life through the back door, which present a separate policy issue. What it does not do is give rise to a basis to reach a conclusion that a man has raped a woman because she drank any quantity of alcohol before sex.

But then, if this “any alcohol at all” claim fails to address the question of whether a woman is capable of giving consent, what should incapacitation mean?  That’s the problem.  While it’s fine to say that passed out drunk is over the line, it does nothing to define where the line is or should be.

There are two components to any attempt to draw a line beyond which consent cannot be given. First is the factual question of at what point a woman is so intoxicated that she cannot formulate a valid decision to engage in sex.  We usually try to define such lines by the number of drinks, but such a definition isn’t necessarily helpful.

Different people can handle different quantities of alcohol based upon factors that are observable and unobservable. A person who drinks substantial quantities of alcohol nightly will have a greater tolerance than one who doesn’t. Some people just can’t handle their liquor. Weight and food intake also affect tolerance. There are many factors involved, and they’re hardly fixed in stone.

Then there is the question of whether the male knows of, and is aware, of the level of intoxication, a far harder matter to gauge. Without notice, a male can’t be expected to be aware of the level of intoxication such that he would know that a woman is too drunk to consent.  And, of course, notice is an integral component of wrong doing. If you don’t know you’re doing something wrong, then it’s unjustifiable to hold you accountable for doing so.

Added to the mix is the question of whether the woman bears any responsibility for her own conduct, or are women deemed incapable of personal responsibility that they are absolved of their role in sex?  Of course, this question permeates the discussion, and is generally overcome by invoking the “victim blaming” mantra, that the putative victim can never be responsible for her role in the mess.

So where is the right place to set the line? Beats me. How should a guy know when the line is crossed?  Beats me. Some may suggest that the easiest way to draw the line is at that “liquor crossed her lips” point, as it provides a clear and objective line (except where the woman drinks outside of the man’s view).  But then, it doesn’t remotely approach incapacitation, whatever that means, for the purpose of creating some degree of moral culpability, and it would be unlikely that anyone, women included, want to be infantilized by expectations of temperance to that extent.

Are college girls good with the idea that society hereinafter prohibits them from engaging in any sexual conduct, from the good night kiss to whatever wild sex they prefer, if they’ve had a sip of beer?  Are they okay with the notion that they are that incapable of handling their lives, of exercising their freedom of choice, that they must be denied sex as soon as liquor touches their lips?

If not, then what?  In the absence of some cognizable, viable objective standard, no one knows where the line is between consensual sex and rape.  But there is no question that a woman’s capacity to consent isn’t voided because she drank a beer, and promotion of that notion is utterly absurd.

The facile word, “incapacitation,” may be just another vagary in the arsenal of gender warfare, but the capacity to consent for purposes of imposing punishment on the male for engaging in consensual sex must be a matter of objective fact and not merely a feminist construct to be pulled out at will.

* If your reaction is, “why, if she subjectively consented at the time, would she later claim lack of capacity?”, you haven’t thought it through hard enough. A month later, after an argument, they’ve broken up, she’s seen him with another girl, she’s spoken with her gender studies professor, anger and vindictiveness replaces passion. In affairs of the heart or loin, feelings often overcome reason and desire twists into rape.

37 thoughts on “When Liquor Touches Lips

  1. ryan

    another problem is different women exhibit incapacitation differently too. ive dated girls who it was obvious they had blacked out or were extrmely drunk.

    But with my last gf, she could drink till she blacked out, but keep her composure and ud have no idea she was blackout drunk. I only learned from experience she was black out when she got quieter and would purse her lips in a particular way when talking to me while blackout.

    1. SHG Post author

      “ud”? “gf”? Let me guess, you’re on your iPhone and typing out the words is way too hard? Your point is well-taken, but come on, make the extra effort to spell out your words.

          1. Rendall

            Totally read that, and thought about it, even. It was beyond my willpower to let “make the extra effort to spell out your words” pass unremarked.

      1. Lex

        On a related note: That poster has a pretty impressive rate of grammatical errors per word. Perhaps Adobe users need a similar “no alcohol” policy?

  2. Nigel Declan

    Looking at this poster, if it was about any subject other than campus sexual assault, the premise that it was up to men to make a categorical determination about a woman based on some external consideration (in this case, the amount of liquor in her cup) as to her capacity to do something would be seen as the height of male arrogance and sexism. Sorry ladies, but once your lips touch the devil’s nectar, you no longer have a say – it’s up to the men-folk to decide what’s best for you.

  3. John Barleycorn

    Cool, the “want some tea” consent video folks are surely gonna have to retool their efforts. Their video always pissed me off anyway for not going there all the way and including the “Want some more tea?”, “How about we switch to a cup of herbal in the middle or after our green tea?”etc., and -the best part of all which they completely put out of bounds- “Want to wake up to tea and cunulis biscuits?”.


    On another point, I too am puzzled why “drugs” aren’t showing up more on these campus consent posters. I would like to think that it is a subtle attempt to promote the joys of stoned copulation and encourage more virgians to become daytripers before they embrace on a lifetime journey of carnal pleasures but I fear it is a sadistic attempt to minimize the sanctity of the Vestal Virgins maintaining and cultivating the sacred fire.

    P.S. If you had thought ahead and bought a D-9 dozer for snow removal this year, you could have spent some time yesterday showing some trees a thing or two about fucking with the peaceful space on the back-forty that would make a great spot to build a storage shed for the D-9 and other various assorted mental health maintanience equipment.

  4. Jesse

    This might not be the world we want to live in, but I would say it’s smart to heed the warning of the poster. They are going to declare the guy guilty if the girl feels post-hoc regret, and they consider the girl’s consumption of alcohol to be an aggravating factor.

    1. SHG Post author

      There is probably no more dangerous attitude than acquiescing in such notions. Giving in to this horseshit is the worst possible reaction, even though it may be the path of least resistance.

      1. pavlaugh

        I’m sympathetic to Jesse’s point of view here. I’m a father of two young sons. I’m near certain I will have a conversation with my sons someday that tracks this poster–or at least to warn them that the poster speaks the truth for how they will be viewed by the college officials. It’s not because I am acquiescing in the notion, but because I would want my sons to mitigate the risk of being permanently exiled from society based on a night of drunken sex.

        I’m reminded of “how parents talk to their African-American sons about the police.” [Ed. Note: Link deleted per rules.]

        Is it better to not have the conversation? To not warn them of the escalated risk? The consequence for young men is significant, as you’ve detailed in other posts, so I can understand the desire to mitigate risk.

        1. SHG Post author

          You should have whatever talk with your sons you think appropriate. That’s not the issue. Let me try to explain this using the “parents talk to their African-American sons” example: they tell their children how to behave so as not to get killed by a cop. Smart move. They do not approve of or acquiesce in laws, decisions, posters that assert it’s legal and proper for cops to murder black kids who aren’t sufficiently respectful. See the difference?

  5. John S.

    What uninspired poster design. I’d go for a tasteful mons pubis overlaid with the text “Is this the hill you want to die on?” Works on so many more levels.

  6. David Stretton

    “Every time you should ask”: Uncle Moishe (also Gene Roddenberry)
    “Ask every time you should”: Yoda
    “You should ask every time”: Normal person

    Serious point: odd phraseology can distract the reader from the message. Me, anyway.

  7. Syme

    But wait! If there is no demon rum in her cup, shouldn’t we assume that she’s already consumed it???

    Every male clearly needs to carry a pocket breathalizer along with consent forms…in triplicate!

  8. Wayne

    In an environment that contains the magic “I was drunk, which magically repudiates any consent I gave and absolves me from criticism or accountability”, how does one prove consent, in a practical and pragmatic sense, now that the burden of proof is effectively on the accused, and there are sub-elements to the event that she can claim that while she tolerated them, she did not consent to *that one thing*, while agreeing to have consented or even initiated the rest of the event?

  9. Pingback: Instapundit » Blog Archive » JUST BECAUSE YOU HAVE LIQUOR IN YOUR CUP doesn’t mean you’re incapable of consenting to sex….

  10. shimrod

    “Are college girls good with the idea that society hereinafter prohibits them from engaging in any sexual conduct, from the good night kiss to whatever wild sex they prefer, if they’ve had a sip of beer? Are they okay with the notion that they are that incapable of handling their lives, of exercising their freedom of choice, that they must be denied sex as soon as liquor touches their lips?”

    College girls and women would be up in arms if they were being “prohibited” from doing anything, but this policy doesn’t do that. It simply provides freedom to do anything they want and blame someone else if anything goes wrong. It provides authority with no responsibility. As someone who’s known many a girl and woman I can tell you they’re not just good with that, they’re great with that.

    1. SHG Post author

      Is there some reason why your personal experience with “many a girl” means anything to anyone? Is there some aspect of your comment that was otherwise unclear from the post?

  11. Mycroft

    Should make the lawyers happy.
    After all, if a woman that has had a single sip of wine cannot consent to sexual contact, how can she be held responsible for ANY legal agreements or contracts. Will banks have to start sniffing female applicants’ breath for alcohol to insure their signatures are enforceable on loan documents?

      1. Mycroft

        But haven’t laws been passed (California affirmative consent) that extend this beyond Title IX. IANAL, but I’m pretty sure that lawyers are usually involved in drafting and legislating state laws.

        1. SHG Post author

          California and New York have new affirmative consent laws, but they apply only to college rape and sexual assault adjudications. And what does your new point (lawyers are usually involved in drafting and legislating [?] state laws) have to do with this making lawyers happy? If you want to blame lawyers for something, find a better reason. This is nonsense.

          1. Mycroft

            I’m not the one moving on to a new point. You claimed that this was limited to Title IX and was being pushed by academics and campus rape advocates and not by lawyers. If lawyers aren’t pushing it, then there would be no new state laws.
            Stop being so defensive.

            1. Myles

              At some point in the legislative process that occurred in two states, staff lawyers may have played a ministerial role in drafting what legislators asked them to draft, with the support of academics and campus rape advocates, magically and inexplicably morphs into “lawyers pushing it.”

              Seems legit.

  12. Steve Willson

    My question is: Can two lesbians who both allowed alcohol to pass their lips and then proceeded to have sex with each other both be prosecuted for rape by these standards, or are they both victims?

    This is a rhetorical question, of course. We all know the answer: They are both victims of patriarchal society, and therefore incapable of wrongdoing. Besides, the alcohol was probably produced in a male-owned factory.

    1. SHG Post author

      Someone always asks this question, or whether a sober woman having sex with a drunk man, changes the equation. The point has been made. Got it.

  13. MPH

    There’s an underlying logic in the “a man having sex with a drunk woman is always rape” conclusion that an amazing number of people miss. It requires that the following assumptions be made:

    1) men ALWAYS know that they may make bad* decisions while drunk, while women are INCAPABLE of knowing.
    2) men ALWAYS know if they are drunk, while women are INCAPABLE of knowing.
    3) men ALWAYS know if their partner is drunk, while women are INCAPABLE of knowing.
    4) men are ALWAYS responsible for their choices when drunk, while women are INCAPABLE of being responsible for their choices when drunk.
    *”bad” means “not the same as when sober”

    These assumptions are necessary for the conclusion “a woman is incapable of consenting to sex while drunk, and so therefore a man having sex with a drunk woman is always rape” to be true.

    If any of these assumptions are false, then the conclusion reached must also be false. Since we’re told that men and women are equal, and these assumptions require that men and women be unequal, let’s look at what happens to the conclusion when we rewrite the assumptions so that men and women are equal.

    If all of the above assumptions are rewritten as “Both men and women are INCAPABLE of…”, then the conclusion that must be reached is “both men and women are incapable of consenting to sex when drunk, therefore having sex with someone who is drunk is always rape”, and in a case where both are drunk during sex, both should be charged with rape, and if only one is sober during sex, the sober one should be charged with rape (note that this would apply even to those who are married). If both are drunk, we’d have to charge both with rape otherwise we’re creating a situation in which being drunk is a “get out of jail free” card, which could be applied to all other crimes (both me and my victim were drunk when I killed him, so I shouldn’t be charged), as well to civil matters such as child support (hey, I was drunk when we had sex which resulted in your pregnancy, so I shouldn’t have to pay child support. In fact, since you were sober, you raped me and so I shouldn’t have to pay child support).

    If all of the above assumptions are rewritten as “both men and women ALWAYS…”, then the conclusion that must be reached is “both men and women are capable of consenting to sex while drunk”, and in no case of consensual sex should either party be charged with rape, regardless of the sobriety level of either of them.

    The assumptions as originally written mean that men have capabilities that women don’t have; hence, women are inferior to men. That’s a strange position to take if you’re a feminist. So women, take your pick: either men and women are equal, and so consensual sex with a drunk woman is not rape; or admit that women are inferior to men (with all that implies about whether women deserve equal rights, equal pay, etc.).

    1. SHG Post author

      It’s often referred to as the infantilization of women, treating them as if they’re incapable of being responsible for their actions as if they were mature adults. Their response is that this is victim blaming. To which, some people just shrug. Logic isn’t everyone’s strong suit, and equality has long since been forgotten.

  14. Pingback: Universities, alcohol, women, and consent « Quotulatiousness

Comments are closed.