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:
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.