Is this really a pressing problem facing women (or men) today? Sex while sleepwalking? Sure, you can find a few cases, but in terms of real threats to women ‘safety, this seems pretty close to a “hit by lightning” kind of problem.
Guys: Don’t get so wasted that you can’t control your behavior. Should you be able to get wasted at the bar and have confidence your (less drunk) friends will control your behavior when you can’t… sure. But it’s a stupid idea. And if you know you tend to sleepwalk, don’t fall asleep in strange places or in mixed company.
Girls: Don’t get so wasted that you pass out or can’t make informed decisions. Doesn’t every woman know this? SHOULD you be able to get wasted in public… sure. But it’s a stupid idea which will very likely result in bad things happening. And if you tend to sleepwalk, don’t fall asleep in strange places or in mixed company.
Is this really that hard?
Driving while intoxicated (DWI) doesn’t make one immune to prosecution, neither should sex while intoxicated (SWI).
At this point that should be true as well for partying while intoxicated (PWI)
Nothing, actually, makes one immune to prosecution. But that’s not really the question is it?
Rather are we not asking whether intoxication is a legitimate & potentially winning defense against charges of rape?
And that, of course, is tremendously complicated by the subsequent question: were both parties intoxicated? And, while jointly intoxicated, was there a reasonable belief on the party of the drunken accused that the drunken accuser had given consent?
Taking it a step further — if we assume that a drunken woman is incapable of giving informed consent even if literal consent is given…must we equally assume that a drunken man is incapable of distinguishing drunken consent (an invalid condition) from sober consent (the only legitimate consent)? And if we grant him the same ‘pass’ we grant the woman…meaning that since we’re not holding her accountable for a consent given when she was drunk, we can’t hold him accountable for not being able to distinguish drunken consent from real consent….then rape, under such a dual lack of responsibility becomes extraordinarily difficult to prove.
Well it would be unless we, in a very sexist manner, say the woman is never responsible for her drunken decisions and the man is always responsible, whatever his condition.
Complexities inside Complications, wrapped in Confusion, and — increasingly — litigation & prosecution: welcome to the Fog of Human Sexual Interaction, itself a contact sport.
These days we define sexual assault/rape (sometimes interchangeably) as unwanted sex….or sex in the absence of consent….or sex in the absence of ‘affirmative consent’ (meaning that provable consent has been asked for and received at each and every incremental step in the sexual pas-de-deux). Absent a thoroughly documented (and preferably notarized) Proof Trail, affirmative consent remains entirely elusive.
The typical qualifiers further complexify.
Consent given in response to male persuasion (e.g. “C’mon…”) is NOT consent….neither is consent given as a function of psychological pressure (“You know you really want to!”)…. nor consent given as a function of threat or implied threat (“I won’t love you anymore!”). Consent given while intoxicated, of course, is not consent either (and God knows no one is ever intoxicated on Saturday night).
In combination this creates an almost impossible dilemma.
The Dance of Sex, the romance, the seduction, the flirtation, the escalating intimacies…all that most typically occurs in pair-bond isolation. Friends at parties may be able to testify at some future court date or Kampus Kangaroo Hearing that, “Yes, Betty Cooper did seem to be getting along quite well with Archie…but then they left to go somewhere else.” What happens in that Somewhere Else is anyone’s guess.
Now the Accuser tells us, ‘what happened between the two of us, unwitnessed, was unwanted’. The Accused responds, ‘she said & did the exact opposite at the time.’ She exclaims, “I was drunk; I couldn’t have consented!”. He answers, “Well so was I and you were nakedly enthusiastic!”. And after a conversation two days later with a Title IX Adviser who reassures Betty Cooper, ‘You were a victim!’…we arrive here, in the midst of the Litigious Fog.
First & foremost is the raw uncertainty associated with the very human fact that two people can observe the exact same thing — experience the exact same series of events — and see them, hear them, feel them in two entirely different ways. This the Rashomon Truth of Human Sexual Interaction.
So — “What about sexsomnia…the notion that people can act without conscious volition in ways that may or may not be criminal and may or may not have been wanted by others who may or may not have been equally sexsomniatic?” The impossible just became more so.
Since we clearly cannot rely upon personal responsibility to keep everyone safe from everyone and the chance that something unwanted may come their way…the only possible solution is mass incarceration. Lock us all up, just to be sure. Throw away every key. What else is there?
Brilliantly lucid. Tragically true. We can’t just be ourselves. That’s why civilisation has inevitably descended into a police-state surveillance-society. We just got there later than the Communists. The Biblical metaphor is the Fall. There is no innocence, and – to use another inspired Biblical metaphor – we are all assuredly going to Hell. Indeed, ‘ . . . this is Hell, nor are we out of it’. Life is the most infinitely depressing predicament. What else is there? (you ask). Why, Death, of course. Yet, somehow, our survival-instinct powerfully deludes us that there can possibly be another escape, whereby we also survive. Heaven? Utopia, even? We cling to this groundless optimism and call it ‘happiness’, even though such a cruelly empty promise only punishes us for daring to deny the absolute Horror of existence. Existence is an insane conundrum not amenable to any adaptation that will allow Life to escape eventual extinction. We are an illusion. We keep ourselves busily occupied as a mere distraction from our nullity. Our actions make no difference. ‘Of course, I might be wrong’. And Godot might arrive.
Sincerely believing that the other party consented is indeed a valid defence against an accusation of rape.
I’m not sure if you’re being ironic but in case you’re not, your statement is certainly not true. I’ve listened to harrowing recordings of convicted paedophiles and rapists claiming that their victims ‘wanted’ it, or were ‘enjoying’ it, even when said victims, according to these rapists and paedophiles, were screaming and crying.
There are many people that have a kink where they scream and cry during sex…. people are really really weird…. and kinks are very very dangerous.
Such things actually being true an accidental raper can genuinely believe the rapee is consenting. Alcohol of course makes rape much much easier to happen by accident.
TBH if you get drunk and get taken advantage of it’s hardly something that you are completely innocent of. If you play with fire you run a high risk of getting burnt…. if you get drunk you run a high risk of surprise sex…. that’s just how it is. I would go as far as to say partaking in certain events are in themselves already consent…. unless you consent to what might potentially happen just don’t be there…. simple. The only way around this is to place authority over your actions upon the head of someone else rather than yourself.
Children cannot fully consent because they are under the authority of adults that consent for them…. a woman that abdicates her right to consent is essentially infantalizing herself. You never hear about men going to parties and accusing woman of rape because men do not have this luxury and are always responsible for themselves whether they like it or not.
Basically what I am saying is it’s ironically sexist to (with the excuse “well she should have every right to drink whatever she likes”) automatically assume that a woman that was taken advantage of was raped while you don’t make the same automatic assumption of men…. you are downgrading the victim rather than the perpetrator. Sure, she has that right…. but she does not also have the right to at the same time renounce all responsibility for her actions the moment something bad happens…. this is essentially her misbehaving and then running to daddy when her actions lead to undesirable results.
You can either treat woman like adults or children, you cannot do both… and clearly…. you cannot equally equate sexual relations with woman and children unless you infantalize the woman to make it a properly balanced equation.
The defence is actually a reasonable belief in consent – not sincerity. In the cases you mention the jury would no doubt reject the claim that the perpetrator reasonably believed in the victim’s consent
I’m sure you’re right, nevertheless the reasonable* belief that the other party consented is still a valid defence against an accusation of rape.
*Reasonable, not sincere:- Thanks to J.Nash for correcting me.
I upvoted him to counter someone’s downvote. He’s raising a legitimate idea and like it or not, ought to be at least discussed. I think he’s right in so far as it is a legitimate defense. Whether it’s plausible or not is for a judge and jury to decide. It’s no different than a self-defense argument which might or might not be plausible. Someone entering your home, armed, who refuses to stop when you tell him you have a gun sounds like a plausible case of self-defense. Shooting someone in the back running down the street who you interrupted stealing the tires off your car is not plausible.
The question is how common is sexo BIA and importantly, how likely is it to recur in the same person. If we are to impose restrictions then there has to be evidence of an ongoing threat. I also wonder how we treat the woman who had sec with a willing man while she was sleeping.
Note that all cases delt with here involved alcohol which is known to induce sleepwalking. So I’m thinking it’s highly likely to reoccur in the same person if the alcohol consumption pattern is repeated.
I am also reminded of cases where a party girl gets pregnant but has no idea who the father is…. not because she went to orgies or even had many one night stands but because she literally does not remember it happening due to her drunken state at the time.
People who help acquit these rapists on such ridiculous grounds should be held criminally and civilly responsible if they go on to commit further acts of sexual violence. This is disgusting.
Do you mean the judges in these cases?
So you would be happy to disregard evidence supporting the defence and any expert testimony backing that up and be sure that the man was guilty on the basis of your own limited knowledge of neurology if you were on a jury?
Penny previously assumed that my dad beat my mum based on my description of him losing his temper and shouting at her. I expect you’ll get similarly ‘short changed’ in any attempt to engage in constructive reasoning when it comes to the behaviour of men. Just hope she’s never on a jury.
However the fact that juries have accepted this defence in several cases without prior evidence of the behaviour by the accused or a proper diagnosis is wrong.
The intemperate nature of Penny’s post did suggest a fair amount of anti-male prejudice might be involved. I don’t know enough about these cases to tell if juries have been over credulous of unsupported claims in this area. It is possible.
The more important issue raised by the article was how to deal with genuine cases to try to ensure there is no recurrence. The Victorian solution of ensuring the chap is locked in at night might not be practical in all cases but has the virtue of simplicity.
During the first few years of my life with my wife I used to have brief conversations about things at night with her that she had completely forgotten by the morning and denied having taken place being convinced that she was asleep through the night – and perhaps she was. As a result the idea that the young woman might have apparently consented to sex while asleep certainly doesn’t strike me as inherently improbable.
I usually agree with you, but I think this is more nuanced. My husband, on Ambien, woke me one night incompetently poking at me and when I turned around to say, “What the heck?” he launched into a weird dreamy monologue–obviously asleep. I thought it was funny, but that was the last time he took Ambien. My point is, a man who acts out sexually in his sleep should be forced to take measures that it doesn’t happen again–parasomnia treatment, no alcohol or drugs, or whatever. Once is a bizarre happening, twice should be a crime.
Did you even read the piece?!