Why does intoxication absolve men of rape and make women culpable for being raped?

This week I learned about “intoxication loopholes” in consent legislation.

Housekeeping: No newsletter next week; I’ll be in Olympic National Forest looking at pretty trees and getting bitten by insects.

If you missed my chat with the lovely Rafael Frumkin, you can check that out here.

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Vincent van Gogh “Girl in a Wood” 1853

Content Note: This post discusses rape and sexual assault

I am not supposed to be writing about rape this week. I didn’t imagine I’d be writing about rape in this newsletter any week. I watched the episode I’m doing for the next Making a Scene, jotted down notes, and then took a break to eat lunch and scroll through my phone.

I knew about the “Cornell Seven” rape case. I’d read a few stories about it, been horrified if not surprised, and then tried to push it aside so I could finish working on something without collapsing into a cycle of anguish and defeat; I know how stories like that can make me spiral.

For those unfamiliar with the story, I’ll recap the incident quickly (again, trigger warning), but I won’t spend much time on the details. If you want to avoid that recap, skip the first paragraph below the break. Alternatively, if you want more detail than I’m getting into here, check out the stories I link to below.

A 20-year-old woman and Cornell student went to a frat party, got drunk, was allegedly pressured into snorting ketamine, and then taken upstairs where seven frat brothers allegedly spent hours raping her. They sent texts to their buddies downstairs, alerting them to “free p---y” upstairs. According to The Washington Post, other texts in the fraternity’s group chat in response to the aforementioned “free p–--y” message include, “‘I f---ing love Chi Phi’; another either sought or provided clarification, ‘Like you can walk in and whip it out’” and, just when you think the stomach churning couldn’t get any worse, “shop still open?”

I didn’t know about the texts when I sat down to lunch, but I knew about the incident, which is horrifying enough to stop anyone with a conscience in their tracks. Then I read one line in particular that caught me like a sucker punch to the gut.

“The case has also put a spotlight on the intoxication loophole in New York state law, which says sexual assault victims can’t claim they were ‘mentally incapacitated’ during an assault and unable to consent if they voluntarily became intoxicated.” [Emphasis mine.]

What. The. Fuck.

Think about that. You go out with your friends in New York. It’s someone’s birthday. Or you’re a college student. Or for whatever substance-related reason, you end up impaired enough that you cannot consent to sex, and then you are raped. New York State law says you don’t have a case. Why? Because you’re a bad girl who shouldn’t have been drinking in the first place.

I know that people of any gender can be perpetrators of sexual assault, and the same goes for victims of it. But it’s also well established that the vast majority of rape victims are women who are raped by men.

In some ways, it’s astounding that the New York law exists; in others, it’s a perfect reflection of a too common attitude towards victims of sexual assault. People toss “what were you wearing?” around as a joke—a reference to the absurdity of the supposedly long-ago days when some claimed wearing a short skirt or tight clothes meant you were “asking for it.” “Were you drinking?” has yet to make the same transition; New York’s “intoxication loophole” just codifies the nauseating attitude into law.

Why does substance use absolve abusers of sexual assault and make their victims culpable for it?

It’s not just New York. I tried and failed to find a resource that lists every state with these loopholes. I went through RAINN’s database and tried to find them all myself. As far as I can tell as a non-lawyer, many states have the same requirement as New York for “mental incapacitation,” i.e., that the intoxicating substance has to be administered without the person’s consent.

Those states include Arkansas, Connecticut, Hawaii, Kentucky, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, Rhode Island, Tennessee, and West Virginia.*

According to The New York Times’ reporting about New York State’s law, “Defense attorneys argue someone could still say they were ‘physically helpless,’ meaning they were either unconscious or physically unable to communicate consent at the time of the act. But that definition leaves out people who were semiconscious, slurring their words, or unable to stand or walk steadily before they were assaulted...A significant number of victims who were clearly intoxicated cannot meet the ‘very high burden’ of proving physical helplessness, said Joe Muroff, chief of the Special Victims Unit at the Bronx district attorney’s office.” [Emphasis mine.]

In my senior year of high school, I was at a party at my best friend’s house. Most of the people there were familiar to me; my friend and her brother each had their own group of friends over. I got very drunk (surprise!) and climbed into a spare bed to pass out. For some reason, one of my girlfriends was asleep on the floor beside the bed. As the world behind my eyes spun and I tried to let sleep swallow me, I felt someone climb into the bed next to me.

Suddenly, I was very awake. My motor skills were still offline, but the survival part of my brain was on high alert. The guy said my name, so I knew whose hands were suddenly all over me. At some point—and with considerable effort—I managed to slur the word noooo (something my half-conscious friend on the floor remembers me saying, though she didn’t understand what was happening).

That’s not what made the guy in bed with me stop, though. His hands prodded my unmoving body, like he was trying to find the right button to bring an immobilized doll to life. After a few minutes, disappointed by the lack of response (as though the nooo wasn’t enough), he mercifully left.

I’m sharing this story for two reasons:

1) To point out that if something much worse had happened—if he hadn’t left that room, my level of inebriation would have fallen in the “intoxication loophole.” I was semiconscious. Technically, I said no, but what if he claimed I was too slurry and he thought I said yes? The very fact that I was able to articulate something, combined with my voluntary ingestion of alcohol, would likely have made any case against him dead on arrival. Yet, is there any question that I was mentally incapacitated? If I could have moved, I would have—believe me, my knee would have moved up hard and fast—I’ll let you guess where.

2) On the grand scale of assaults women I know have experienced (usually, but not always, involving substances), what happened to me is among the least terrible. I was very lucky that something worse didn’t happen that night. I am exceedingly lucky that throughout the rest of my years of enthusiastic, voluntary intoxication, nothing worse happened. I am objectively lucky.

Is that what luck should look like? Is that the kind of luck you want for your kids, your siblings, or yourself?

College kids drink, often too much. Adults drink, often too much. People with alcohol (or other substance) use disorders frequently use too much. These realities have always been, and will always be, true. And yeah, being drunk means you lose some rights. For example, you can’t legally drive a car. Operate a forklift or pilot a plane. All logical restrictions. Bodily autonomy, however, should never be a right you lose.

Worse than knowing this “intoxication loophole” exists is knowing the legislature has failed to take the necessary action to repeal it twice: once in 2019, and again this year. The law isn’t a forgotten relic of the days when women couldn’t vote. It’s top of mind for some legislators and still hasn’t been repealed.

The New York Times concludes its piece about the law with the following story about a woman who went for drinks with a coworker in 2015 and woke up in a Brooklyn hospital:

There, she said, a nurse told her that she had been found inside a hotel, climbing on furniture. When emergency workers came to help her, she fought with them, kicking and screaming.

A rape kit found semen on her body, and she had bruises on her arms. But, in part because of errors the detectives made in the investigation, she was unable to prove she had been drugged.

And because of her conduct inside the hotel, Ms. Hunt said she did not appear “physically helpless.”

“It’s incredibly unjust,” said Ms. Hunt, now 42 and living in California. “Like I did something wrong because I chose to drink.”

This newsletter is about substance use and addiction recovery. It’s about being compassionate, non-judgmental, and seeing the pain and humanity in people who are struggling. It’s about understanding that substance use is complicated, as are brains and bodies, and understanding that we’re not always our best selves when we’re in the thick of addiction. I want to apply that ethos to everyone equally, which makes the following question one I have been trying and failing to parse for the last 72 hours:

Why does alcohol use absolve men of rape and make women culpable for being raped?

*I read through the consent laws in every state, but I may have missed some or misunderstood the legalese. If you’re interested, please double-check my work by looking up the laws on RAINN’s website.

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I’m not a doctor or mental health professional, so my advice shouldn’t be construed as medical or therapeutic. You are free to take or leave it.