Classical Values :: Sex in the men's room -- it isn't just for gays anymore! <br> (And drunken sex is mutual rape!)

November 28, 2008

Sex in the men's room -- it isn't just for gays anymore!
(And drunken sex is mutual rape!)

A few days ago I wrote a post about sex in men's rooms, and among the issues I discussed were whether or not some of the men who have sex in restrooms are "straight." (I don't think they are entirely straight, although I do think many of them are bisexuals who lead heterosexual lives but who nonetheless want to enjoy homosexual sex without having to acknowledge it, which the anonymity of the restrooms facilitates.)

However, when I wrote the post I was I was presupposing that when sex occurs in mens' rooms, it occurs between men. Perhaps I shouldn't have made that assumption, for I now see that a heterosexual couple (consisting of one man and one woman) were arrested for having sex in a men's room. The woman says that the incident has ruined her life:

A Carroll woman who was caught having sex in the men's room at an Iowa Hawkeye football game in Minneapolis last weekend says she'd had so much wine before kickoff that she doesn't remember walking into the restroom, the man she had sex with in a stall, or when the police opened the door.

What Lois Feldman, 38, will remember is the humiliation afterward.

"It's ruined my life," she said through tears today. "Not just the incident but the press."

I wonder whether an alcohol blackout defense or tears would have worked for Larry Craig. Somehow, I doubt it. Interestingly, the police never tested the couple's blood/alcohol levels, because it was irrelevant to the charges.

Feldman, a married mother of three, has been the target of Internet jokes and prank telephone calls today. She was fired this morning from an assisted living center, where she had been an administrator.

Feldman said her husband, Kelly, has been supportive. She said he faults himself for not going with her when she left her seat to use the restroom before halftime.

"I don't know what happened," Lois Feldman said. "But I don't deny that it did happen because obviously there are police reports."

Police ticketed Feldman, 38, and Ross Walsh, 26, of Linden for indecent conduct Saturday night.

A security guard who said he saw the two having sex through a gap in a men's restroom stall flagged down campus police, according to the police report.

By the time an officer arrived, about a dozen people were cheering and laughing in the bathroom while Feldman and Walsh were inside the stall, the report said.

The officer pushed his way through the crowd, opened the door and separated Feldman and Walsh, the report said.

Police described both Feldman and Walsh as upset, drunk and uncooperative.

Chuck Miner, deputy chief of the University of Minnesota police department, said officers tracked down Feldman's husband.

"I'm not sure how they made contact with her husband, but they needed her husband to help identify her" because she'd given the wrong middle name.

Miner said police didn't measure the blood-alcohol level of Feldman or Walsh. Asked to respond to Feldman's claim that she was too drunk to recall the incident, Miner said: "That's probably an accurate statement."

Feldman said she'd never met Walsh.

"I don't know who this man is," she said today. "I just found out his name in the paper last night."

Walsh wasn't immediately available for comment.

What's fascinating about this is that in many jurisdictions, a man who has sex with an intoxicated woman can be charged with rape, and in California, sentenced to 8 years in prison. In effect, drunken sex is illegal if the woman complains later:

Bottom line, if a girl is intoxicated she cannot consent to sex and you could be charged with rape. It does not matter whether you knew she was intoxicated, it doesn't matter if you were intoxicated too, all that matters is that she was not in a state of mind to consent and therefore it is rape. If you get a girl drunk or high and then "get together" with her you have committed a sexual assault. Again, it doesn't matter if you are drunk or high as well. Your diminished abilities do not negate your responsibilities. A good rule to follow; if you are under the influence do not have sex.

What I've never been able to understand is why a woman who has sex with a drunken man can't be charged with rape. Are the laws sexist? Or only their enforcement?

Here's what the San Diego District Attorney's Office says:

* Face the facts: If she's wasted, intoxicated, asleep, or unconscious, she cannot give legal consent, even if she said "yes"
* Face the law: Rape by intoxication is a serious felony that can carry 8 years in state prison

Why doesn't it say "if he or she's wasted"?

Obviously, if a drunken man forces himself on a woman, that's rape, right? But if a drunken woman forces herself on a man, and can later demonstrate she was drunk, he'd be chargeable with rape, under the theory that because she was drunk, she could not "consent." Well, why is it that a drunken man can consent, but a drunken woman can't?

Can a man consent to sex if he is drunk, but not a woman?

Is this fair?

Isn't it sexism?

(An attorney writing in Mens News Daily about these disturbing new rape laws thinks it is, and he looks at several outrageous scenarios.)

This Los Angeles Sex Crime Defense Lawyer take a broader look at the law, and says:

"Having sexual intercourse with a person who is intoxicated, unconscious or asleep, and therefore unable to resist, is also rape."

I guess that means man or woman.

Should I be reassured?

Let's try these, um accusations out and see how they look, his-and-hers style.

ACCUSATION 1:

"Your honor, I was so drunk I was unable to resist her. Therefore, I was raped!"

ACCUSATION 2:

"Your honor, I was so drunk I was unable to resist him. Therefore, I was raped!"

For the life of me, I can't see these accusations being treated equally.

Certainly not in light of this FAQ propounded by a public interest organization consisting of "the San Diego County District Attorney, San Diego Police Department, Sheriff, colleges, universities, the military, the Center for Community Solutions / Rape Crisis Center, and the Sexual Assault Response Team":

5. What do I risk if I have sex with a woman who is intoxicated or "wasted"?

The penalties are severe. Rape by intoxication is a serious felony that can carry up to 8 years in state prison. In California, convicted felons are not able to vote, own firearms, or even sit on a jury. Plus, your job prospects quickly evaporate once your potential employer finds out that you're a felon. Don't forget that perpetrators of rape by intoxication, like other sex crimes, are required to register as sex offenders.

6. What does the law say about legal consent to sex?

There's a big difference between consensual sex and rape by intoxication. The California penal code clearly indicates that if a woman is wasted, intoxicated, asleep, or unconscious, she cannot give legal consent to sex. This is true even if she said "yes" to sex earlier.

Whether the man says "yes" is of course laughably irrelevant. The rule is that men are considered to be inherently more capable of consent than women. (Similarly, men are considered to be inherently more capable of sexism than women, if indeed women are capable of sexism at all. That's because men are strong and women are victims, and if you don't agree, you're a bigot! Forgive the irony.)

To return to the men's room, while both parties committed a crime by having sex in public, given the California law, I don't think the fact that the woman committed that crime would have much bearing on whether she was raped (at least in California). There's just a kneejerk tendency (reflected in the summaries of the law) to see women who have sex with men as victims of the men who have sex with them -- especially if the woman is drunk or intoxicated. Yet men -- no matter how intoxicated -- are never seen as victims of women who have sex with them, nor would an intoxicated gay man be seen as a victim of another intoxicated gay man.

I don't know what the law is in Minnesota, but in California, it's pretty clear that the man could be charged with rape. (With the woman seen as the victim.)

Beyond the sexism, what do you do if you're one of those nervous, timid and neurotic types (man or woman) who can only have sex when you're drunk? Is it fair for the law to declare you legally incapable of consent?

What worries me is that if they wrote and enforced the law in a fair and non-sexist manner, all drunken sex would become a criminal offense. So, if you're a timid person who needs to get drunk in order to have sex, and you found another similarly oriented person, you wouldn't even be able to protect yourselves by having drunken sex together. It wouldn't be drunken sex. It would be mutual rape.

And it would not matter whether you were doing it in a public men's room, or at home in your bedroom, or whether you're man and woman, or husband and wife. In theory, even the husband and wife who have drunken sex with each other could be sent to prison for eight years.

I guess the Minnesota men's room couple should consider themselves lucky.

posted by Eric on 11.28.08 at 08:22 PM

TrackBack

TrackBack URL for this entry:
http://classicalvalues.com/cgi-bin/pings.cgi/7717

Comments

I think consent here has to mean consent to be penetrated. Yes, I know that's a bit crude, but it is the essential difference. A passed out drunk male certainly can be raped under that definition, but by a woman? Harassed, perhaps abused, but not raped.

Alcohol blood level is irrelevant to a charge of indecent conduct.

Donna B. · November 28, 2008 09:16 PM

The problem is, the law says does not require anyone to be passed out, only to be incapable of consent.

I think you're right about penetration in terms of common sense, but although penetration must occur, rape is not defined as necessarily having to be done by the penetrator. Section 263 CPC:

The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.

Similarly, if a woman has sex with a minor boy, that he penetrated her (and she consented) is irrelevant. She is the rapist.

Incredible as it may sound, men have reported being raped by women, even though the women were penetrated. An account here:

http://jameslandrith.com/content/view/3148/79/

The law does not limit consent to "consent to be penetrated" -- and this can get especially tricky with oral sex, where the "active" partner is techically often (though not always) the one who is penetrated by the "passive" partner.

So, if a drunken woman orally copulates with a man, the law would see her as having been raped. But if a woman orally copulates with a drunken man, there would be penetration, but the law would not see the man as having been raped.

This cannot be explained away by saying that a man inherently gives consent by having an erection, as men can have erections in their sleep, or when intoxicated. Under such circumstances, I suppose a woman who has sex with a sleeping husband could also be a rapist.

I realize this sounds crazy, but I think the laws are asking for it by defining rape as sex while intoxicated. I think we could all agree that having sex with a totally unconscious person would be rape, but OTOH common sense suggests that a person who goes home with someone, gets drunk with that person, and climbs into bed and then has sexual relations with that person was NOT raped. (Even if there is regret the next day.)

Eric Scheie · November 28, 2008 10:03 PM

I agree with you about the laws defining sex while intoxicated as rape. I don't have a problem with adult/minor sex being rape either, as long as we're not calling 18 year olds minors. I think I have a problem with 17 year olds too.

At what age does one gain the ability to give informed consent? Should that be different for males and females? Females are taking a bigger risk, physically. I'm not even sure an 18 year old girl fully understands the life-long side-effects of birth control methods.

It gets messy doesn't it? What is the relationship between the law and common sense? (not entirely kidding)

Donna B. · November 28, 2008 11:31 PM

No, Donna. One doesn't have to be penetrated in order for rape to occur. If a man is passed out, and a woman has sex with him without his consent, then she is guilty of raping him, in spite of frat-boy jokes to the contrary.

bmmg39 · November 29, 2008 12:52 PM

After seeing man after man abused by the system by broadening the definition of "rape" further and further, the libertarian in me is starting to push me towards not making any difference between rape and assault and battery.

I know that rape carries psychological damage beyond being simply beaten up, but few people seem to want to acknowledge how screwed up our society is getting by making sex an actual weapon in the hands of some women.

Phelp · November 30, 2008 01:28 PM

A number of years back, I read a report about a young man who was tied up in a bed (I believe he may have been intoxicated or drunk at the time, but I can't remember) by two women who raped him. When brought to trial, the judge threw out his complaint by saying, essentially, because he was sexually aroused, no rape had happened, even though he clearly told them he did not want to have sex with them. I remember at the time thinking what a ridiculous ruling that was, because a man isn't in complete control of his level of arousal, but he can still exert self-control and resist following his impulses. It was clear the women behaved against his will and consent, and should have been charged with raping him.

SK · December 3, 2008 11:07 AM