Classical Values :: Consent negated? Or implied?

October 26, 2005

Consent negated? Or implied?

WARNING: Graphic discussion follows.

I've been struggling with a deceptively simple question:

Is drunken sex rape?

I don't mean drunken rape, because I think it is possible to form the requisite malice in that state. What I want to know is whether intoxication does -- or should -- prevent someone from consenting to sex. Because if it does, then any sex with a drunk person might be rape. (Bear in mind that this is compounded by the problem of imputing intent to active versus the passive roles in sex, but I'll save that for later.)

What prompted this is the rape prosecution of two LaSalle University basketball players. I'm having a little bit of trouble getting all the facts of this case, but it does appear that the accuser went to the men's dorm room, drank 8 shots of 99 proof liquor, and had sex.

According to the DA, the woman was in no position to consent:

In his opening statement, Assistant District Attorney Richard DeSipio acknowledged that the woman was "binge drinking" shots of liquor that night, had flirted with the men, and had engaged in a sexually explicit conversation with one of them before the alleged assault took place.

With graphic description, DeSipio said that Gary Neal, 21, began to rape the woman after she vomited in the kitchen sink, and that Michael Cleaves, 23, joined them and tried to simultaneously force the woman to perform oral sex on him before the men switched positions.

"She's so weak from vomiting... she's just hanging there like a limp blow-up doll, at their mercy. And they knew they had her," DeSipio told the jury.

Neal and Cleaves have both pleaded not guilty to rape, sexual assault, conspiracy and related crimes. Attorneys for the pair told jurors that the sex was consensual and that no crime was committed.

"This case is not about rape. This case is about regret," Neal's attorney, Assistant Defender Wendy Goldstein, told the jury. "In the morning, when the alcohol wears off and everybody knows she had sex with both these men, regret sets in... . She has every reason to turn herself into a victim, rather than face what everyone thinks of her."

That the woman didn't fight back or say no is undisputed, as is the fact that she was drunk:

The woman is expected to take the witness stand today before Common Pleas Court Judge Shelley Robins New. The woman has previously testified that she was too drunk to say no, fight back, or scream for help during the alleged attack.

(More here.) Our system of justice operates under the principle of reasonable doubt. If this woman was, as she admits, drunk, how is it possible for her to know whether she was raped or whether she consented? The defense maintains, of course, that she was remorseful the next day.

Obviously, she felt used. And from these facts, it's pretty obvious that she had been used.

But is being used rape? And how can such things ever be determined after the fact?

If drunken sex is rape, there's an awful lot of rape (especially between husbands and wives).

I hate to sound like a sexist ass, but I'm skeptical. I don't think this is the same thing as saying that a woman who "dressed like a slut" was "asking for it." This woman got drunk in a room with two men late at night, and by her own admission did nothing to stop them. Bear in mind that the college students are now looking at twenty years in prison because of this accusation.

While I do believe consent should be voluntary, I also think there can be such a thing as implied consent.

(Or, possibly, there are circumstances less than fully consensual but which don't rise to the level of rape. Back in the days before AIDS, men used to lie naked face down on beds in gay bathhouses, next to an open jar of vaseline. Whatever you might think about that, anyone doing such a thing is in no position to cry rape.)

I've posted about this before, and I'm having the same logical problem now as then:

....if these people were all gay men, no one would be complaining of rape. Why is that? Because it's basic common sense among homosexuals that if you go to someone's bedroom late at night and get drunk with him (or meet him in an already drunken state in say, a bar!), there's an understanding that, far from being rape, sex was the whole idea. Each party would, without any hesitation, accept his own responsibility.

Here, no one accepts responsibility; there's a criminal case.

As I pointed out previously, if one person is drunk and the other is sober, it is legally possible that the sober person raped the drunk person, if the latter was prevented from resisting because of intoxication, "and this condition was known, or reasonably should have been known by the accused." But this is a criminal case, and they're going to have to show beyond a reasonable doubt that there wasn't consent. Unless the law prevents drunks from consenting, the fact of the girl being in the room late at night, her "sex talk", and her getting drunk there, will all be factors.

Earlier, the defense stated she spoke to one of the defendants about her expertise at oral sex, and now I see that she's admitted "sex talk":

The alleged victim was called to testify Wednesday morning, but she could be heard sobbing outside the courtroom and her testimony was delayed for 40 minutes. The woman admitted that she sat on the lap of one of the defendants in June 2004 and engaged in some sex talk. She went on to tell the story of what she called a drunken rape.

I think this is going to be a tough case for the DA. While I do not defend the sleazy conduct of the defendants, if she went to their room, engaged in sex talk, and got drunk, I don't see much of a distinction between that and going to a gay bathhouse and getting drunk. It comes precariously close to implied consent, and while the defendants are not angels, is their conduct really something that society wants to define as rape and punish with 20 year prison terms?

And if a man's wife gets drunk and he has sex with her, is that rape? How about if the wife has sex with a husband too drunk to legally consent?

Or suppose a husband and wife get drunk together and have sex. Returning to my original hypothetical question: if two people, married or unmarried (and bear in mind that women can rape men) get drunk and then engage in sexual intercourse, how is it to be determined which person was raped?

Is the woman always necessarily the victim? As I asked over a year ago:

why in logic is not a man just as much a victim of a vagina as a woman the victim of a penis?

I know it sounds crazy, but crazy factual scenarios invite crazy questions.

In drunken situations, it would seem that the first to sober up, have regrets, and call the police would get to be the victim.

I'm still struggling for answers.

(I guess people should fill out one of the various sexual consent forms.)

UPDATE (10/27/05): There's more from the trial in today's Inquirer. A few excerpts:

She acknowledged that she had eight consecutive shots of 99 Apples - a 99-proof alcoholic beverage - had sat on Neal's lap, and had told him she had once performed oral sex on a basketball player they both knew.

Sat on his lap and told him about oral sex? This brought a question from one of the defense lawyers:

The woman testified that she was on athletic and academic college scholarships and maintained high grades.

"You're a smart girl. You're in college. You have to have some common sense, yes?" Cleaves' defense attorney, Michael McDermott, asked during rigorous cross-examination.

"Yes," she replied.

"Then tell the ladies and gentlemen of the jury why a 19-year-old girl, who had eight shots, would stay alone with a man she doesn't know" after having a sexually explicit conversation about oral sex? McDermott asked.

The woman said she couldn't answer that question.

Acknowledging the reporting delay, she says she considered the men "ugly" and stated that sitting on someone's does not indicate an interest in sex:

She later acknowledged that she did not immediately tell the other camp counselors what had happened. She said she also did not tell former women's basketball coach John Miller in a meeting with him the next morning, although she said she did complain that some belongings were missing from her dorm room.

When she later spoke to detectives, according to her signed statement, she said she didn't discuss oral sex with Neal.

She also told investigators she wasn't interested in Cleaves and Neal, calling them "ugly."

"Sitting on someone's lap does not mean I'm interested - that I want to have sex with them," the woman explained yesterday.

Without taking sides, even if we assume she's telling the truth, what on earth has happened to common sense?

Let's see. A girl comes to the room of two healthy young athletes, downs eight shots, sits on one man's lap, and tells him that she performed oral sex "on a basketball player they both knew."

What does she expect will happen at that point? An intellectual discussion of Thomas Aquinas?

UPDATE: Here's a thought. Considering the apparent position of M.A.D.D. and others that drinkers should be arrested to prevent them from driving, can arresting them as a rape prevention measure be far behind?

posted by Eric on 10.26.05 at 09:54 PM

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Comments

I think I commented on this last year, actually. :) Based on the facts that you say have emerged, my opinion hasn't changed. How are we supposed to legislate or adjudicate these things? Will Big Brother soon be installing cameras in our houses so the courts can assess exactly how many times a guest batted her eyes and flipped her hair? Are five hair flips the minimum for consent? Adults are supposed to keep their wits about them. You don't have eight drinks in the private company of men with whom you've been having teasing sex talk if you want to be sure that you won't consent to something you know you really don't want to do. (I'd say the same thing to a clueless young gay guy, BTW.) I hope the men's fathers seriously read them the riot act--if they were lucky and their mothers didn't get to them first. But there doesn't seem to be any way to eliminate reasonable doubt that they committed a crime.

Sean Kinsell · October 27, 2005 12:01 AM

Precisely because rape is so heinous a crime, it needs to be defined within strict limits. The solution is difficult.

Speaking for myself, Aphrodite and Dionysus have never been compatible. When I'm "lit up" (which is very rare these days), I'm not turned on. And I'm not turned on by a woman in that state either. I think that, for me, it's a spectrum:

asleep - drunk - sober (awake) - sexy (wide awake)

Steven Malcolm Anderson the Lesbian-worshipping man's-man-admiring myth-based egoist · October 27, 2005 01:06 AM

I remember the last time there was a reasonably high-profile "she was drunk, so it was rape" trial. Someone commenting on it made the point that the prosecution was effectively arguing that women weren't considered fully adult by society, since the man was also drunk, but only he was being punished for their mutual behavior.

wheels · October 27, 2005 01:09 AM

As Paglia says, If she's dead drunk, she's complicit. If she ran over someone, would you say, Oh it wasn't her fault, she was drunk?

jeff · October 27, 2005 01:10 AM

On the one hand, I agree with what you say about implied consent. Furthermore, as jeff hinted, a drunk driver is held fully responsible for the consequences of his actions while drunk; so the same principle should apply to drunk sex. She chose to go to a guy's dorm room, and chose to get drunk there, while sober and able to consider the consequences.

On the other hand, in this particular situation, the woman was so thoroughly out of it that no reasonable person would consider her in a position to make an adult decision or act effectively on it. These guys didn't cooperate with a woman driven wild with desire; they knowingly used a woman who was weak from vomiting as a virtual rag-doll. If she had tried to drive in such a state, the law would have expected the guys to prevent her from doing so. Therefore, the guys should have simply hustled her into bed; and they should be held responsible for not doing so.

These guys may not be criminals, but they sure are pathetic losers.

Raging Bee · October 27, 2005 08:46 AM

I think she would have to prove that she was incapable of even managing to say "no". No one here knows what her state was that night -- all we have is her story and the guys' stories. I'm going to assume she will exaggerate.

Like someone else said, all these cases do is show that some women don't even want to be considered adults. If she was too drunk to consent, then they must be too drunk to be held responsible. I can't see how you can have it both ways.

But then, I don't believe you can be too drunk to be responsible, as someone pointed out, drunk people are at fault when they drive and hurt someone. My opinion is that you're responsible for knowingly getting yourself into a state where you apparently can't even consider yourself responsible for your own actions.

silvermine · October 27, 2005 11:06 AM

I think this has been implied by the previous posters, but I'll try to make it explicit.

Why is the argument about decisions and consent focusing on what happened after she was drunk? The drunk driving example is perfect. We do not charge a drunk driver with making the bad decision to run someone over with his car. We charge him with making the bad decision of getting behind the wheel in the first place.

I think the complication here is that she made a bad decision that did not lead directly to the bad outcome (having sex she regretted). The bad outcome required the active participation of a second (and third) party.

If I had my way, I would hold her responsible (in the eyes of the law) for the bad decision of getting drunk late at night with two guys, etc., etc. and dismiss the rape charges. Perhaps there is something else, slightly less serious, to charge the two guys with.

If, God forbid, I were either of those two guy's father, I would hold him very seriously responsible for being a dirtbag, but that's another issue entirely.

Tom · October 27, 2005 12:00 PM

How hard would it be to prove that she had indeed barfed in the kitchen sink prior to being "raped?" If something like that can be proven, then it would have been obvious that she was in no condition to act with serious volition, and that the guys should have recognized this and left her alone. It would not prove that she was "raped," mind you, only that the guys took unfair advantage of her condition.

This case is like that of a drunken sailor getting rolled in a bad part of town: the robbers were wrong to take what clearly wasn't theirs, but the sailor was also wrong to put himself at such risk by getting drunk in a bad part of town. As my grandmother once said in relation to the William Kennedy Smith case: "They're ALL guilty!"

PS: I'm with Tom: these guys are dirtbags if they would choose to have sex with someone as trashed as this "victim" was. I think the court should find a way to drive this message home to them.

Raging Bee · October 27, 2005 02:10 PM

This is the downside of college women being taught by nitwit feminist professors that "No always means No," and women can dress and act any old way they want to without any consequences. These silly women don't know the first thing about protecting themselves. They are apparently clueless that they are putting themselves at grave risk by their carelessness.
Creepy, skanky guys, but the woman was an idiot. (And I'm a woman, well past college age. My girlfriends and I partied hearty in our day, but we did not do stupid shit like that. Girls don't travel alone, you travel in pairs at least. Zero sympathy for "Miss Expert at Oral Sex.")

garnets · October 27, 2005 05:05 PM

Without commenting on this case, I can say there are a few cases of men being raped by women, in which no one would argue about that being the correct charge.

Some years ago, for instance, a Mormon missionary lad was going door to door in Britain when he was invited in to the apartment of two women. They held a gun on him and forced him to perform, according to the news accounts.

And there was a quite extraordinary case of a woman raping a woman here in the Seattle area. It was almost completely suppressed, though things like this do not happen every day, because the victim was white and the perp was black -- and stated in court that she had done it because she didn't like whites. (For those curious about the mechanics, she forced her victim to commit oral sex.)

I happened to see the motive on a noon TV news program, but, as far as I have been able to determine, it never appeared again on the air or in any local newspaper.

Jim Miller · October 27, 2005 08:03 PM

Raging Bee:

"On the other hand, in this particular situation, the woman was so thoroughly out of it that no reasonable person would consider her in a position to make an adult decision or act effectively on it."

Lots of people drink to loosen themselves up enough to have sex. Whatever you may think of that behavior, you can't say that they haven't made an adult decision. And do we know how thoroughly out of it she actually was? Have the guys acknowledged that she passed out? Everything I've seen about her BAL has had maybes all over it. In real life, lots of times, blotto people feel better after they throw up. The men pretty obviously deserve punishment of some kind, but I don't see how the court is supposed to do it (or "send a message") if they've committed no crime.

Eric:

"What does she expect will happen at that point? An intellectual discussion of Thomas Aquinas?"

What she was probably expecting was that the man would continue to be attentive to her in a fashion that made her feel pretty, charming, sexy, and desirable. Maybe she wanted him to try to close the deal, or maybe she was just a tease; it just isn't possible to tell. One thing I've wondered about: was there evidence of sexual assault? I haven't seen any news reports that say so, but there should have been if she went to the hospital soon after the incident.

Sean Kinsell · October 28, 2005 01:47 AM

There's no dispute that sex occurred. The dispute is whether she consented to it, and whether drunkenness rendered her incapable of saying no. (I have seen no allegations of violence, unless, of course, sex itself is violence.)

There is testimony that she was asked to leave by her female teammates, and wouldn't:

http://www.philly.com/mld/inquirer/news/local/13016150.htm

****QUOTE****Ferguson testified that when she asked the woman to leave the men's dormitory and return with the other women to the women's dorm, the alleged victim just smiled and didn't say anything.

"Obviously, she wanted to stay there," Ferguson testified under cross-examination, adding that she believed the woman liked Neal.

Ferguson said that, when she tried to get the woman to leave with her, Neal stood in the background and gestured negatively and mouthed the word "no."

Under questioning from defense attorneys, another La Salle women's basketball player, junior Meghan Wilkenson, testified that on the night in question, she believed the alleged victim was trying to "hook up."

When the rest of the women left Cleaves and Neal and went to get ice cream, the alleged victim stayed behind at the dormitory with the men.

"We left, and she didn't want to come with us," Wilkenson testified.****QUOTE****

Eric Scheie · October 28, 2005 09:55 AM

Sean: I'm not sure what the guys can be charged with other than "rape," which I don't consider appropriate in this instance. If it is proven that the woman was in a weakened/semi-passed-out state when the actual sex occurred, is there such a crime as "knowingly taking advantage of someone who was clearly debilitated?" Or, if no better criminal charge can be found, at least the judge can give the guys a strong public verbal bitch-slap after the "rape" charge is dispensed with.

Raging Bee · October 28, 2005 10:39 AM

I have no trouble with the judge's telling them they behaved despicably; I do think that it crosses a line to turn otherwise-competent adults into temporary invalids. To me, "debilitated" implies having your faculties impaired by an accident or some sort of external force; if this had been a Mickey Finn, it would be a different matter. These things that happen in private spaces are always going to be he-said-she-said afterward; an adult has to be mindful of that and not do things that impair her judgment if she expects to be able to refuse any advances that come her way.

Sean Kinsell · October 29, 2005 04:01 AM

Great post and subject!
I too am afraid that I will sound sexist, but some women want to eat their cake and eat it too, as it were.
Add to this the issue that only the women herself knows when flirting is just playful taunting and when "it's on"...
Women have a lot of power over men and they shouldn't abuse it, and in cases like this it sorts of turns against them.
Even so, I can't say if it was rape or not.

Gabriel Mihalache · October 31, 2005 05:11 AM