America’s young women have been
admonished recentlyto avoid binge drinking, but there are also good reasons for men not to get hammered.
Here’s one of many reasons not to binge drink: A guy can get convicted of rape if he’s too drunk to realise a woman is saying no — even if he remembers nothing of the assault or thought the sex was consensual. (And yes, a woman could be convicted of rape in similar circumstances, though the cases are rare.)
“The law basically says that if you voluntarily got yourself so drunk that you had no idea what you were doing, we’re not going to excuse that,” Catholic University law professor Clifford Fishman told me.
That’s because rape is a general-intent crime, meaning prosecutors just have to prove a rapist was being negligent or reckless. Unlike specific-intent crimes, rape doesn’t require prosecutors to prove a rapist specifically intended to rape somebody. (Other general-intent crimes are assault or reckless endangerment of a child; premeditated murder is a specific-intent crime.)
To be sure, a drunken guy who doesn’t realise what he’s doing is more sympathetic than, say, a serial rapist. But that guy still needs to be punished for getting that drunk and violating somebody.
“You can imagine somebody drunkenly but honestly mixing up the cues, being too drunk to realise the other person is not consenting,” UVA Law professor Anne Coughlin told me, but, she added, “That person is dangerous.”
In some cases, a drunken assailant could be convicted of a lesser degree of rape than a sober person, according to Fishman. (He stressed that it’s difficult to generalize too much, since rape charges vary from state to state.) A rapist’s mental state could certainly influence sentencing, he said. From an email Fishman sent me:
As a general rule, a defendant who knew the victim was not consenting is more morally culpable, and therefore deserves a harsher sentence, than a defendant who was too stupid or conceited or lust-crazed to realise the victim was unwilling. But that is an issue that would be decided by the judge (or, in some states, the jury) only if, and after, the defendant was found guilty.
A rapist’s intoxication will almost never get him off completely, though.
There is one unlikely scenario that would enable an intoxication defence: if somebody slipped the rapist a drug that dramatically altered his perception of reality. However, usually drunk people are responsible for putting themselves in that state. And if a drunk person has sex with somebody who’s clearly saying no or is completely passed out, then a jury would likely consider that rape.
The situation gets more complicated if both parties are conscious and drunk. Here is how the Justice Department defines rape:
The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
The law is currently evolving to determine whether a conscious woman who’s incredibly drunk is capable of giving consent, Coughlin, the UVA professor, told me. What happens if a guy says he was too intoxicated to consent to sex? For now, this is mostly a theoretical question that has yet to be answered.
“The point is women are the ones who step up and say, ‘I was raped.’ Men don’t,” Coughlin told me. “They may feel some subjective violation, but they don’t go to police and say, ‘She raped me.'”
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