|Drunk Pumpkin (Photo credit: Wikipedia)|
At the same time, it is important to acknowledge that there does appear to be a point past which it is difficult to argue that consent of any sort is possible. The sort of drunkenness that we might call "blacking out" would be an example. A person is such a state can still function to some degree, but it is tough to argue that anything he or she does here is consensual. In fact, an individual in such a state may be so impaired that he or she is unable to give meaningful consent. It is in this area that it probably makes the most sense to talk about how something that could look like consensual sex to an observer is not in fact consensual.
If there is a point up to which consent is possible and beyond which it is not, it is not necessarily an easy point to identify. Even close friends of the person involved cannot always identify it.
I didn't realize you were that fucked up last night. You seemed to be enjoying yourself.As a heterosexual man, what I was taught about consensual sex growing up was quite simple: stop whatever you are doing the moment a woman tells you to. If she says "stop," you stop immediately. It doesn't matter if we've already started the sex act; she can change her mind at any point. And if she tells you to stop and you don't stop, that is rape. The problem with this otherwise sound advice is that it does not account for the possibility that the woman in question may be so drunk that she doesn't quite understand what is happening to her (i.e., impaired to the point where meaningful consent is unlikely).
We don't like to think about this scenario playing out, as it has many disturbing implications. If having drunk sex with someone you probably wouldn't have had sex with when sober takes place when you are so drunk that you are past that point of consent, it begins to sound as though what you experienced may have been rape. Does it matter if both parties involved are equally drunk so that neither can consent? Can someone reasonably be expected to know that a potential sexual partner has reached this point of drunkenness where consent is unlikely? Imagine trying to conduct such an assessment of someone you just met at a crowded party. Short of adopting a "no sex if I think you might have been drinking" policy, it won't be an easy task.
This sort of scenario also raises a bizarre sort of question: if the person we are tempted to regard as a victim of rape because he or she had sex when too drunk to give consent does not perceive himself or herself as having been raped, is it still rape? Imagine a guy who gets this drunk wakes up next to a woman without remembering anything about the previous night. She tells him they had sex, and although he has no idea who she is, he is thrilled to have "scored" and has no regrets at all. Was he raped? If he had sex without being able to provide consent and especially if she was far less drunk, the answer would at least seem to be "probably." And yet, this is sure to be controversial. I know that some will try to dismiss this scenario on the grounds that they believe a man this drunk will not be able to maintain an erection and have intercourse. This is not true for all men; some men can achieve and maintain an erection even at this level of drunkenness.
If we flip genders and imagine a scenario where a woman gets so drunk that she's past being able to provide consent and wakes up next to a man she does not remember and then learns she had sex, we seem more inclined to interpret what happened as rape. And yet, if she indicates that she had fun, has no regrets, and decides that she kind of likes the guy, things seem a bit less clear. Was she raped? Some would seem to say no, at least not unless there was evidence that the man involved was much less drunk and used that as an opportunity to take advantage of her. But I think "probably" is likely to be on the more conservative side of how many people would answer and that quite a few would lean toward "yes."
I did not write this post because I have answers for these questions - I don't. I wrote it because I am tired of seeing absolutistic pronouncements about such a complex subject (e.g., "If you had sex while you were drunk, you were raped. It doesn't matter if you liked it or wanted it"). Some are merely silly, some seem determined to spread misinformation, and others actually interfere with our ability to have the sort of discussions we need to be able to have about such important subjects.