Rape, Drunkenness and Consent, or Is Sex Intrinsically Harmful?

About a month ago (14 February 2015, p. 4) the British newspaper The Guardian published an article in which it was reported that three men had just been jailed for “raping a woman who admitted to being so drunk she did not know whether she had consented to sex.” An initial decision by the Crown Court to dismiss the charges was successfully appealed by the Crown Prosecution Service. Now they have been sentenced to six years each in prison. The woman whom they are alleged to have raped - and who in the article is consistently referred to as “the victim” - declares herself pleased with the decision. A spokesman for the Crown Prosecution Service praises her for the “tremendous courage” that she has shown after suffering such a “horrific ordeal”. But it is good to see, he says, that now finally “justice has been served”. The DI who led the police inquiry, agrees: “We hope this serves as a warning and reminder to everyone that before engaging in any kind of sexual activity you must be absolutely sure that the other person has the capacity to fully consent and does so.”

Now I don’t know anything about this case except what I have learned from this newspaper article. So perhaps there are aggravating circumstances that I am not aware of. But let us, for the sake of the argument, assume that the article relates all the facts of the case that were relevant to the verdict. In that case, what happened was this: the woman in question went to a bar, where she consumed “up to 12 shots of vodka”. She met the three men who were later convicted of raping her, and accompanied them (voluntarily) to a flat where she drank more vodka and repeatedly had sex with all three men over a 20-hour period. Her family reported her missing and when the police found her at the flat the next evening, she couldn’t remember anything. She admits that the sex she had with those men may have been entirely consensual. However, because she was drunk at the time, it was ruled that she did not really have the capacity to consent, from which it follows that the men had sex with her without her consent, which fulfils the legal definition of rape. Hence the criminal conviction.

There are various things that puzzle me about this case. The first is that the woman seems to be absolved of any blame or even responsibility for what happened in that flat. The three men alone are seen to be responsible. The woman is simply a “victim” of a crime. She didn’t do things; things were done to her. The director of public prosecutions commented: “It is not a crime to drink.” Well, no, it isn’t, but that doesn’t mean that you are not responsible for what you do after you’ve gotten yourself drunk. If I get drunk and then drive home in my car and cause an accident, then it is unlikely that I will be exonerated on the grounds that I was so severely drunk that I didn’t really know what I was doing and thus incapable of consenting to driving a car. And that is because it was my decision to get so terribly drunk in the first place. I should have known better.

It may of course be argued that the case in question is different because other agents are involved and those agents committed a crime. If I get drunk and you relieve me of my wallet, and that is only possible because I’m so drunk that I don’t really know what is happening to me, then this is still a crime and you should rightly be convicted of theft. True, but in the rape case things are different. Here the crime does not simply remain unaffected by the victim’s drunkenness (as in the theft case). Rather, it is the victim’s drunkenness that turns the deed into a crime. Had the victim been sober, then she wouldn’t have been a victim and no crime would have taken place. Now imagine that you had not simply taken my wallet from me, but that I had insisted, in my drunken state, that you take all the money in my wallet. If you then did what I asked you to, you would of course still have taken advantage of me. It was certainly not a very nice thing to do because you could and should have guessed that if I had been sober I wouldn’t have offered you my money. And if later, after sobering up, I asked you to return my money, then I think you should return it, and perhaps even be legally obliged to do so. But I don’t think that you should be sentenced to prison for theft. One may disagree with this, of course, and insist that what happened did amount to theft, but my guess is that this would be mostly because you clearly inflicted harm on me, and that harm exists independently of my inability to consent to your actions. But in the rape case there is no harm other than the harm that consists in, or results from, the woman’s inability to consent. I’m of course not talking about rape in general, but only about this particular case where, it appears, there was no violence and no coercion. No physical or other direct harm was inflicted on the woman. Nonetheless what happened to her was regarded as a “horrific ordeal”, apparently not because she suffered in any way or even minded much at the time, but solely because she was not capable of consenting to it. The odd thing about this view is that it seems to suggest that the sexual act is intrinsically harmful unless it is consensual.

Imagine that the three men didn’t have sex with her, but instead played tic tac toe with her all night because that is what they are into. The next day she cannot remember anything, and it emerges that she was too drunk at the time to be able to consent to playing tic tac toe. If she had been sober, she would never have agreed to play that particular game with those particular men. Clearly, the men took advantage of her. Yet it would probably not occur to us to demand that those men be imprisoned for what they did to her. Seizing the opportunity to play tic tac toe with somebody because they are too drunk to refuse would not be considered particularly blameworthy. Yet seizing the opportunity to have sex with someone because they are too drunk to refuse is considered to be a heinous crime, punishable by six years of imprisonment. I wonder why exactly that is.

It is not only that I find it a bit worrying to be officially reminded and warned that “before engaging in any kind of sexual activity you must be absolutely sure that the other person has the capacity to fully consent and does so”, because this makes sex an awfully complicated and serious affair, full of legal pitfalls. This does not only rule out any drunken sex, but also any light-hearted sex, any sex that is not self-conscious and wary, stifled by the fear that one may have to pay for a misinterpretation of the signs with serious jail time. It’s going to be hard to actually live by that rule and still enjoy sexual encounters with people one hasn’t known for a long time. And even then we will not always have the required certainty. Do we ever have the capacity to fully consent to sex? What exactly does that mean? And can we ever be absolutely sure that the other has that capacity? How exactly do we become sure of that? Simply by asking? Are you sure you want this? Are you really sure? Are you sure you’re sure? But the most interesting question is why the absolute certainty of full consent is deemed so terribly important when it comes to sex, and to sex only. What is it about sex that makes it so special, so unlike all other activities that we cannot do it with another human being unless we are absolutely sure that they really want it?

One more thing: the unacknowledged gender aspect of the whole case. Imagine everything had happened the exact same way, but with the victim being a man and the perpetrators being women. After 12 pints in a pub the man is taken to their flat by three women who take advantage of his intoxicated state and repeatedly have sex with him. The next morning he finds he cannot remember anything, but, reasoning that he had clearly been too drunk to give his consent, he sues the three women for rape and they all get convicted and sentenced to six years of prison. The public and the media applaud the decision, and everyone, including the man himself, is very pleased that justice has been served. How likely is that scenario? Not very, I should think. And that is not because men are any less likely to suffer and be traumatized when they are subjected to sexual violence. I think it’s rather because we find it very difficult to see the violence in this particular case when the main protagonist is a man. In fact, I don’t think we would accept that the man has been harmed at all by the sex he engaged in, despite his alleged inability to consent, and we would most certainly not think that he went through a “horrific ordeal”. But why would that be? Assuming I’m right about this, what  makes the two cases so different that they are evaluated so differently morally?

At the moment I can only guess that it has something to do with the way we view human male and female sexuality. Despite the fact that women want and enjoy sex just as much as men, we are for some reason assuming that for women the sexual act is intrinsically harmful,  so that they should only be subjected to it if they explicitly consent to it, while for men the sexual act is intrinsically not harmful, but on the contrary pleasurable, so that, since pleasure is good, explicit consent to the sexual act is not morally required.