Sunday, March 4, 2012

Grey Rape

The only site I really read on a regular basis is and some discussions over there got me thinking about the topic of "Grey rape", or not-strictly-consensual-sex that doesn't fall in the boundaries of straight up rape.

As a law student, I've got to say that rape is not as cut and dry a concept in legal terms as it is on those posters you find in college dorms.  Well-- in some states it is.  in others, it isn't.  Rape laws vary from state to state.  Some states require force-- without force its just "sexual assault"-- but ideas on what rape is often include lack of ability to consent, simply saying no, or the lack of an affirmative acceptance.  

So grey rape are the situations where a girl gets drunk and participates in the sex, or where she's sober and says no, no, no, but then says its ok, when there's coercion or pressure, when there's anything questionable really.

There is one specific scenario of grey rape that I found worth thinking about more than others-- the mutually drunk situation.  Let's look at two scenarios, each involving one night stands.

Scenario 1:  A girl and a guy are both drunk.  They head back to his place.  There is mutual fooling around, and then mutual sex.  So, both partners are in the affirmative on this one-- but they are both drunk.  Both think they know what they are doing, and both are as aware as drunk folk can be.

Scenario 2: A girl and a guy are both drunk, again at his place.  There is mutual fooling around.  All of a sudden, the girl gets flipped over, and he's in her.  She isn't participating anymore, she's laying there limp-- but she also isn't stopping him, and she didn't say no.  She didn't even realize it was going to sex until he was in her, because she was that wasted.  But, she was enthusiastic on all the stuff before sex, so how is he to know to draw the line there? 

Moving outside of legal terms, and into more moral/philosophical ones, I personally don't think either situation is rape-- largely because BOTH parties are drunk.  So technically, if she can't consent?  Neither can he.  So who is to say one of them is raping the other.  Even if, in both situations, she wouldn't have consented if she were sober-- who is to say that he would have consented if he were sober?  What if neither the guy nor the girl in either situation would have consented when sober?  What if its just the details of the situation-- say, the guy in situation x had a girlfriend, and the girl didn't approve of cheating, but would have had sex sober if he'd been single, but he still wouldn't have?

Consent is not usually tricky.  You get an affirmative response, you don't sleep with drunk people.  Easy.  But when both individuals are drunk?  It gets confusing, to me, at least.  Is anyone actually raping anyone else here?  Its tricky.  And I'm not entirely resolved on how I feel about it.  But at this point?  If both individuals are drunken idiots, and no one actually says no OR gives any physical sign of no?  Then I don't think it is.


n c said...

I'm in a sexual assault education group at my school, and when we do presentations/faciliations, we get asked about this exact issue a lot.

One of the ways we talk about it is to use an analogy of a drunk driver hitting a drunk pedestrian - both are impaired, but the actions one took clearly result in the injury of the other. It's not perfect, but it's an approximation.

I know my state and my university handle the issue of intoxication and impairment and consent by using what's called the "reasonable observer" standard - I can't remember the exact wording, but the gist of it is that if a reasonable, sober person would judge the intoxicated and impaired person to be too impaired to consent, then consent is impossible in this case.

Of course, this is problematic, because it doesn't regard whether or not the perpetrator has been consuming any substance that would impair their judgement. It chooses to hold them responsible for obtaining consent whether or not they are, perhaps, capable of that much reasonable thought. However, the important thing to remember is that consent is not the absence of a no - it's the presence of a yes. In the scenario you described, there isn't any such yes - just a lack of a no. Therefore, according to the law (which is, actually, rarely enforced as such) what occurs is rape.

The problem with these cases, as I see it, is actually not determining where blame lies. If such a scenario happens - picture the consequences. The next morning both are confused as to what happens; she perhaps tells a friend, who spreads the rumor that it was rape; some of his friends stop speaking to him; some of his friends call her a slut; she starts have panic attacks; he is treated differently by teachers or employers who've heard of what happens; both lives are hurt. But people don't think in terms of who suffers - people think in terms of who is at fault. And you're right - it is different from other cases of assault; in this case, it's not the intention of anyone to hurt anyone else, but the consequences are still that people are hurt.

As I see it, the only way to solve the problem of intoxication and consent is to make sure that every single person knows how important it is to have consent and to make responsible decisions about sex. When checking for consent is second nature, when someone realizes automatically that they are too drunk to be making those decisions, the problem will be solved. But, unfortunately, society doesn't seem to think that way.

[b] said...

I find this really interesting. I'm on the student conduct committee at my school (college) and obviously (but unfortunately), we're asked to confront this issue occasionally.

I know in my state there is a law (I don't know if you indicated that it was a national law) that a party can't consent if their judgment is "significantly impaired."

Obviously, the trouble lies in the decision of what significantly impaired means. One beer? Seven? A handle of vodka? And, as you brought up, if both parties are intoxicated and they "rape" each other, then where does the fault lie?

In practice, it has generally been the female that has made a complaint of rape in this situation, from my experience. We've found in doing sexual assault education that it's helpful to give men a "safe space" where they can discuss how unfair this is (and I do think it is unfair that in practice, they are the ones that need to be sure their date is consenting). Generally, the advice given to males is to keep asking - is this okay? Is that? Kind of ruins the mood but, you know, better safe than sorry.

Obviously, this system leaves much to be desired, but I don't know that there is a better one. It can certainly be abused, but it also does what rape laws should - protects those who, for some reason, cannot protect themselves.