A Philosopher's Blog

Defining Rape III: Intoxication

Posted in Ethics, Law, Philosophy, Politics, Universities & Colleges by Michael LaBossiere on June 30, 2014
A half-drunk glass of beer

A half-drunk glass of beer (Photo credit: Wikipedia)

Not surprisingly, most sexual assaults on women in college occur when the women are intoxicated. One reason for this is obvious: an intoxicated person is far more vulnerable to sexual predators than a sober person. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on the matter from the standpoint of morality.

From an oversimplified moral (and also legal) standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus here will be on the impact of intoxication on a person’s ability to given consent. To be a bit abstract, the philosophical concern here is about what might be called the person’s consent agency (or agency of consent). Roughly put, this is the capacity of the person to give proper consent. What counts as proper consent will no doubt vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree considerably about this matter. However, it should suffice for the purposes of this brief essay to go with an intuitive view of proper consent which involves the person having the capacity to understand the situation and the ability to consciously agree. Setting aside the complexities of the matter, I will now turn to the discussion of intoxication.

Intoxication is, obviously enough, a proportional impediment to agency of consent. Or, in plainer terms, the drunker a person gets, the less capable she becomes of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree (or, as people say, being drunk makes you stupid). When the person has no consent agency at all, having sex with that person would clearly be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the rather important matter of sorting out at what point consent agency is lost. As with all such things, there will be a significant gray area between the paradigm cases and this area will be the most problematic. I will get the easy paradigm cases out of the way first.

One paradigm case is that in which the perpetrator intentionally intoxicates his victim using what is known popularly as a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.

Another paradigm case is that in which the perpetrator is an opportunist: he does not drug his intended victim with a “date rape” drug, but finds someone who has rendered herself unconscious or incapacitated through intoxication. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out in a drunken stupor and someone takes my wallet, she has committed theft. Naturally, I could be justly chastised for being so careless—but this would not change the crime.

A third paradigm case is that in which a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. So much for the clear cases, now is the time for the grey territory between being unimpaired and being unconscious due to intoxication. Somewhere in this large territory lies the point at which a person loses her consent agency and is incapable of actual consent.

One obvious problem with finding the boundary at which consent agency ends is that this point might occur well before a person has lost the capacity to engage in behavior that would indicate clear consent by an unimpaired person. For example, an intoxicated woman might say “yes” to a request for sex or even actively initiate the act and then actively and enthusiastically participate. Despite the appearance of consent, the woman might actually be incapable of consent—that is, she can engage in consent behavior but has actually lost the capacity to consent.

If this can occur, it would create a serious moral and practical problem: how can a person tell when another person is capable of consent behavior without being able to give actual consent? This would obviously be important for the person interested in sex as well as those involved in any legal proceedings that might follow.

It might be countered that as long as a person can engage in consent behavior, the person still has agency of consent. That is, the apparent consent is actual consent. This does have considerable appeal in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a proper “yes” or merely “yes” behavior without true consent. It also would provide a clear basis by which potential witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. This view could be seen as a presumption that behavior indicates agency.

This view does have considerable appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted into the drive through). When I wake up the next morning and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

It is worth noting that a decent person would certainly take into account apparent intoxication and out of a sense of ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would hardly be theft. Likewise, if a woman is drunk but making it clear she wants to have sex with a man, the decent thing for the man to do is refuse, escort her safely home and, if necessary, guard her from the less virtuous when she passes out. However, if he accedes to her request, it would seem odd to claim that she had been raped.

One might also raise the point that it is better to err on the side of caution and assume that a person who is impaired to almost any degree has lost the capacity for consent, regardless of the person’s behavior. This, however, seems to be too low of a standard and there is the practical problem of recognizing such a low level of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

The last matter I will consider is a scenario in which both parties are intoxicated. In some college sexual assault hearings the man has countered the charge by asserting since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is certainly sound. To be specific, if sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they are raping each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that legitimately makes the person accountable for his (or her) actions. As with the agency of consent, this can be impaired in varying degrees or completely eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability.

Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting  another person or not. Thus, if two people are both too intoxicated to consent, they are also both too intoxicated to be culpable.

The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.

If this is the case, then when a man and a woman have sex while both are adequately intoxicated, they are raping each other. However, there seem to be few (any?) cases of women charged with raping men—or both parties being charged with rape. Even a cursory search of the web will reveal that men are (almost) uniformly presented as the aggressors while women are the victims. However, if drunken sex constitutes rape, then it would seem that college men are also being raped—by definition. Yet there is little or no concern or outcry regarding this. I will address this matter in my final essay on this subject.

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10 Responses

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  1. T. J. Babson said, on June 30, 2014 at 9:07 am

    Mike, you need to see the current obsession with college sex as just a small part of a larger movement to strike back at men–particularly white men–who committed the unpardonable crime of creating Western civilization.

    • WTP said, on June 30, 2014 at 9:46 am

      TJ, you need to see these ongoing dustups coming from the so-called intellectual left (but I repeat myself) as nothing more than part of a larger movement to obfuscate and confuse the meanings of words and consequently our understandings of objective reality in such a way that at any time words and concepts can have whatever meaning is convenient. It’s kinda similar to what is going on with the 3 felonies a day. Once everything is illegal, you can pick and choose what laws to enforce. Once language (on which laws are based) is devoid of meaning, you can interpret the law to be whatever you please. They regard Orwell as an instruction manual instead of a warning.

    • Michael LaBossiere said, on June 30, 2014 at 2:48 pm

      Since I work at a university and have friends at other schools, I’m inclined to think that it is mostly some folks in the media that have the obsession. For the most part, colleges are going along as they always have-people skip class, go to football games and so on, while some media folks create the latest media fad. This is not to say that there are not actual problems and issues, just that one should always take the obsession of the media, pundits and politicians with a bucket of salt.

      The attack on men and whiteness is certainly a fashionable thing in certain “elite” circles at “elite” schools, but at my level we are mostly busy just teaching classes, grading papers and serving on committees. Destroying the West is really not on the to-do list. But, perhaps the folks at Harvard and Yale (with their light teaching loads) have time to do that stuff.

      • WTP said, on June 30, 2014 at 2:59 pm

        Yes, it’s the media that has this obsession. Mike says…in THE FOURTH POST ON THE SUBJECT he just wrote himself. Not to mention the one just before this series was the second one he wrote concerning another “media obsession”, trigger warnings. But it’s the media, you see. Nothing academic centered to be seen here, just move along until Sarah Palin says something, or we get a hurricane or two. Which of course will be points of serious philosophical contemplation.

      • T. J. Babson said, on June 30, 2014 at 4:17 pm

        Mike, what do you think all the talk about “rape culture” is supposed to accomplish? The idea is to inculcate in men the idea that they are guilty, guilty, guilty.

        • Michael LaBossiere said, on June 30, 2014 at 6:29 pm

          Let me put on my cynical hat. With this hat on, I’d say the main purposes are these:
          1. Sell magazines and attract eyeballs to TV shows and web pages (get attention and make money).
          2. Forge a political/ideological tool, as you noted.

          Removing my hat of cynicism and putting on my glasses of niceness, I see some people who are honestly worried about the well being of both women and men. That is, they really want to address real problems in a just manner. I think almost all of us would agree that rape is bad and that people should not be raping people.

          • WTP said, on June 30, 2014 at 6:35 pm

            Likewise would not falsely accusing people of rape by redefining rape to be something that is not rape be bad? People should not be dodging responsibility for their own actions by trumping up charges of rape against (mostly) men in a kangaroo court of public opinion.

            TJ, you let him dodge these issues to detriment of your own position on rape which appears to be considerably more narrow than mine.

            • T. J. Babson said, on June 30, 2014 at 11:02 pm

              Rape is nowadays defined as “sex the female regrets.” Since women have a lot of regrets, we live in a “rape culture.”

            • Michael LaBossiere said, on July 1, 2014 at 8:53 am

              Are you referring to what might be called “retroactive” rape? That is, when the person is convinced after the fact that what occurred was not bad judgment but an assault? Christina Hoff Summers writes a well argued piece on this matter, drawing an analogy to the child care/Satanism panic a while back.

            • WTP said, on July 1, 2014 at 4:03 pm

              This is an old joke but it ran across it today and it reminded me of Mike:

              Sherlock Holmes and Dr Watson are on a camping trip.
              In the middle of the night, Holmes nudges Watson awake, and says, “Watson, look up at the sky and tell me what you see.”
              “I see millions of stars, my dear Holmes.”
              “And what do you infer from these stars?”
              “Well, a number of things,” he says, lighting his pipe:
              Astronomically, I observe that there are millions of galaxies and billions of stars and planets.
              Astrologically, I observe that Saturn is in Leo.
              Horologically, I deduce that the time is approximately a quarter past three. Meteorologically, I expect that the weather will be fine and clear.
              Theologically, I see that God is all-powerful, and man, his creation, small and insignificant.
              What about you, Holmes?”
              “Watson, you fool. Someone has stolen our tent!”

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