Saturday, October 21, 2006

‘Drunken Consent is Not Consent’ – an attack on women’s sexuality

In an Interview with the times last week Solicitor general Mike O’Brien once again raised the issue of making drunken sex into something that courts potentially class as rape. As tempted as I and all other socialists might be to support any measure capable of raising the woefully low conviction rate for rapes, this proposal is highly problematic, not simply for men engaged in consensual sex but for women.

As the discrimination moderator on the revolutionary left forums pointed out, such proposals ‘reduce women who drink to the legal status of a child’. She is absolutely right. Such proposals seem to assume that women could not possibly want to participate in the joys of drunken sex. It assumes that women, unlike men, could not possibly wish make such decisions in a state other than one of cool, sober rationality. In other words these proposals seek to impose upon women and men a narrow, idealised view of female sexuality. One might ask – at the risk of being pilloried - why such proposals would not apply to men who are drunkenly induced to consent to sex. On one level this might be put down to the obvious power differentials that exist between men and women, both on an individual and a societal level. Yet these proposals also betray a fundamentally conservative approach which views sex not as the collective endeavour of two individuals, but instead treats sex in terms of the woman giving something of herself and the man taking it away. This is why I ,as a socialist and a supporter of feminism oppose mike o'brien's proposals.


Phugebrins said...

Goodness, I thought consent while drunk was not considered consent at all. What would you say to a proposal to make drunken consent inadmissible coming from either gender (i.e. not just having had one unit, but actually drunk)?

stroppybird said...

I think there is a difference between having a few drinks , and able to consent, and so drunk the woman can't stand up and is barely conscious. I think in some of the rape cases the woman was that drunk . I would doubt she could consent or physically try to stop the man. If a man was that drunk I doubt whether he could be 'induced' or be able to actually have sex. So there is a difference.

I think each case should be looked at individually but the law should accept that there can be times when I woman was so drunk that she was not consenting .

Charlie Pottins said...

Both men and women frequently use drink as an excuse, whereas they used it in the first place to loosen inhibitions - and in vino veritas - do what they wanted to do. I'd be surprised if any jury fell for that these days.

But there is "power difference" biologically, in that a man who claimed to be so drunk he did not know what he was doing would usually have had difficulty doing it. On the other hand, if he wishes his "partner" to be purely passive and helpless, getting her insensible may be all part of it, administering the anaesthetic if you like. Since rapists and child abusers are into the power kick as much as "sex",they prefer it that way.
But as Liz says, you would have to rely on a common sense distinction between states of drunkenness.

Martin Wisse said...

I can see where you're coming from with this issue, but to me it feels like valuing a theoretical concern ("reducing women who drink to the legal status of a child) above that of a very real problem.

stroppybird said...


Tend to agree. The reality is that if someone is extremely drunk then they are no longer able to give consent. Im not talking about a bit, but very drunk to the point of passing out or close to.

Its not about the status of a child, its an acknowledgement that alchohol or some drugs can impair capacity.

Also to say that we all blame alchohol for doing something silly is trivalising it. I may 'blame' being drunk on saying something stupid, but rape is a whole different matter.

The question is if a woman has almost passed out shouldn't a man realise that she cannot be consenting to sex? And the issue about him being drunk, well if he was so drunk he could not see that then he is also probably to drunk to do anything either.

Reuben_the_communist said...

ok to respond first to martin my 'theoretical concerns' are indeed a very real problem. the potential that government can restrict consensual sex and in particular restrict the circumstances in which women can have consensual sex is a 'real problem'

With regard to stroppybird i think the notion of common sense is problematic concept in this case simply because it is so indefinite. put it this way: if this law came into force what bloke would want to rely on the comon sense of the jury in making, what is crucially, a subjective judgement about whether the woman in question was drunk or too drunk. The implications of this law would be that regardless of consent a man would only be able to *estimate* whether or not they would be committing rape. Under such circumstances i - and probably 90 per cent of men - would go nowehre near a woman who'd had a few. As such drunken sex would, for women, be essentially a non-option.

you and charlie have apointabout the issue of why it doesnt apply the other way round, although there are of course a number of sexual acts thatr can be performed on a man regardless of their sobriety or otherwise.

stroppybird said...


I'm glad you find a date rape drug something to joke about. Glad to see men on the left aware of the issues (not).

Seems the issue is reduced to jokes about getting women drunk as a pulling technique.


I am looking specifically at women being raped and the issue of alchohol. Its necessary to put this into contect. the vast majoirty of rapes are men raping women . The rate of convistion is very low. Many more never get to court and many women never report it.

But I am sure someone will say what about men who are sexually assualted by women or what about all these women who cry rape.
Of course there are very very rare cases where a women has made a false allegation. but the reality is the vast number of unreported and unsuccsseful rapes convictions.

It is still a traumatic process to go through reporting, court etc. Given that I do not think there is a large number of women who would get drunk and have sex, then think hmmm wish I hadn't done that, i'll accuse him of rape. The responses is to think oh shit and try to forget it.

Given that it is important that a woman being drunk is not used as another defence by men who rape. 'oh well she was semi conscious and not speaking, but of course she consented'. The judge then putting it doen to a woman who was asking for it for being drunk.

As I said this is not making a woman a child in the laws eyes, its an acknowledgement that there can be a level of drunkenness that means someone is so out of it they do not know what they are doing or able to actively say no. It is a small number of cases of course, but important.

Date rate drugs also mean a women can't consent . This does show a technique amonst some rapists to get a woman in a state at whicj=h she has more or less passed out. very similar to being drunk, but more immediate .

Louisefeminista said...

"Reuben, I see you're threatened by the loss of your favourite pulling technique. Shame. Ahh well, there's always the Rohypnol..."

I didn't want to comment as I was kinda shocked and annoyed by the above comment but felt compelled to in the end.

Salman: Sorry but I have to say my sense of humour has gone down the pan when there are comments made in jest about a date rape drug as it is insensitive (even if it was an off the cuff remark...).

I was drugged and raped as a teenager. It was traumatic and I still find it difficult to find the language in describing my experience.

I do though expect the left to show a bit of awareness and understanding. But obviously not.

Sorry to say but that comment about Rohypnol just aint funny.

Stroppybird has said mainly what I want to say but all I will say is that Mike O'Brien is wrong (non consent is already enshrined in the law so why this extra bit is beyond me).

stroppybird said...

My last post should have said Reuben and Martin, as a reply.

Jim Jay said...

Salman. I'll be blunt, but I'll try not to be rude. I think your joke about date rape was extremely misjudged and in bad taste.

Perhaps in conversation with people one knows well tasteless jokes are harmless enough but in a public forum (and a socialist one at that) where a sensible discussion on a difficult and very sensitive topic is being discussed... well I think you've made a serious mistake here.

This is a public discussion about rape legislation Salman and it's quite inappropriate.

I could write a long "ticking off" but I'd rather not do that. Do you see where people are coming from on this?

Jim Jay said...

And a point on the issues themselves...

It simply isn't true that being completely insensible means a man can't fuck. I've not even remembered meeting some of the women I've had sex with and I've certainly regretted it the next day - even when I had no idea what exactly occured.

Certainly some of these women were nowhere near as drunk as myself and i think some category of uninformed consent would probably apply both with myself in these cases and with some women who've ended up having sex with men and then realised they've made a big mistake. In those cases I don't think the male should face prosectution.

BUT in the cases where drugs and/or alcohol are used to deliberately render someone incapable of defending themselves (or where this state is taken advantage of) that clearly should result in prosecution, and hopefully conviction.

The difficulty lies in drawing a balance so that people are not sent to jail for making poor choices (and it is important not to destroy people's lives over this sort of thing, even though false rape accusations are rare compared to actual rapes) but that we do protect the public from being raped.

And the second difficulty is proving it, which is far harder than almost every other crime.

Salman Shaheen said...

I'm sorry for the misjudged joke, and I appologise for any offence caused. Obviously I think it's a serious matter, and obviously I share the important opinions of socialists and feminists on this matter. When it comes to politics, I tend to take the opinion that if you're going to be a lefty, you do have to open your own opinion (and my own opinion is unequivocally against sex offences and date rape) to humourous discussion and satire. I frequently ridicule my own views, I don't think I could survive as a lefty without doing that. But that's not to undermine the seriousness of the issue, and again, I'm sorry if that joke offended anyone. I'll be more cautious in future.

stroppybird said...


Its not about satire or us not having a sense of humour, but date rape is not funny and is insensitive. But hey Im probably just a humourless feminist .

Jim Jay said...

Well done for the apology Salman, not an easy thing to do.

Stroppy I share your anger about the original post, but I think once you've persuaded someone they were wrong you should really stop having a go at them, even if the apology is not exactly as you would have wished.

After all isn't that what a lot of politics is about? persuading people - if we're just about labelling people as bad or good then we're straying into moralism which a lot of people find alienating.

Liz said...

Reuben - I agree with your post. I wrote an article for Morning Star earlier this year arguing the same position and I was accused by Louise of 'trivialising rape' and 'feeding the backlash against feminism' because I (shock, horror) quoted Katie Roiphe in relation to the date rape scares on US campuses.

I do not trivialise rape - it is a terrible crime and should be treated as such. But there is an inconsistency when it is asserted that men have criminal responsibility when drunk whereas women are incapable of even consenting to sex. What if both parties blacked out and couldn't remember what happened during the night? It isn't impossible to imagine false allegations taking place, as the precedent is there. Whether or not it is acted on is a different matter. I'm sure most women would simply want to forget an unpleasant and regretted sexual encounter, but all the same it is potentially dangerous. It gives the message that if I am drunk enough and regret an encounter the morning after I can accuse a man of rape if I feel that way. As Reuben points out it is highly subjective, as to how drunk someone was and whether or not a jury deems them to be capable of having consented. It may prevent the accused from having the right to a fair trial, it's so subjective that one jury could deem half a bottle of wine to mitigate consent, another would need the accuser to have been passed out.

What of the man cannot remember what took place and was drunker than the woman? Could he then accuse her of assualt?

Having said that I think that it can be agreed that a person who is unconscious is not in a position of consenting. It becomes problematic when a clear line is not drawn between this state and simple drunkness, and by implication consensual yet drunken sex and rape.

There is indeed a very conservative, almost Victorian, mentality at play here. Non consent is already in the law so the extra bit is simply infantilising women, imagining them as helpless as children. It does imply that women should not drink or cannot handle their drink, as what does it say about women? We cannot even consent to sex while men have criminal responsibility?

stroppybird said...

"I wrote an article for Morning Star earlier this year arguing the same position and I was accused by Louise of 'trivialising rape' and 'feeding the backlash against feminism' because I (shock, horror) quoted Katie Roiphe in relation to the date rape scares on US campuses."


Louise has spoken openly about a very traumatic experience and all you can do is moan about a past argument. It took courage to write something that personal. It brought back very painful memories and has upset her. You have spoken of past experinces you have had. Would a little empathy and humanity been that difficult?

Reuben_the_communist said...

I am very mcuh in agreement with what you say liz, especially the last paragraph.

Jim's experience suggests that a man can be sufficiently inebriated to not realise the full implications of that which he is doing while still being capable of doing this. Aside from this a number sexual acts (ie oral) can be performed upon a man whatever his physical capabilities.

I remember reading somewher that it was only druing the transitions that preceded the Victorian period that penetrative sex became as elevated as it has done above other forms of sexual activity. Regardless of the validity of this point, it seems to tie in with Liz's point about 'a very conservative, almost Victorian, mentality ' at play here. The fact that as Liz puts it, women 'cannot even consent to sex while men have criminal responsibility' reflects the notion that sex is understood as something a man 'does' to a woman, even when it is not coerced.

Liz said...

Precisely, Reuben. Seeing sex as something a man 'does' to a woman leads to all kinds of reactionary conclusions.

You use the example of oral sex (which is in fact something a woman can 'do' to a man). If this kind of thinking was gender neutral (which of course it is not as it based on a Victorian notion of female sexuality or the lack thereof, women as children or as 'pure') then it would be possible in theory for a man to claim the following day that he was sexually assaulted after he received fellatio when intoxicated and not knowing fully what he was doing. Which is what makes the thing so ridiculous. This is not taken account of by the supporters of this line of thought, as penetrative sex is elevated by them.

The elevation of penetrative sex that you point to (by the Victorians) seems to be directly connected with their sexual mores generally, which we know were prudish and very oppressive towards women. It helped reinforce the good woman/bad woman myth, as after penetration a woman's virtue was thought to be tainted, she was 'used goods'. It was all tied in with notions of women as property too.

I may get metaphorically shot for saying this - but to make myself clear before I say it I do not in any way minimise rape and I am not trying to offend anyone. I may also be going off on a slight tangent but I feel it is worth raising. I have long been rather troubled by the feminist idea that it is the worst thing that can happen to a woman, or that women 'never get over it' (the view that is promoted by some rape crisis centres). While rape is a terrible crime which undoubtedly causes trauma, the last thing I would want to hear after an assault would be that I would 'never get over it'. I would really want to forget about it as soon as I could and get on with my life. I say this after having experienced a couple of encounters that were not consensual, and I reject the idea that they have somewhat tainted me forever or made of me a perpetual victim. The worst crime that could be committed against me would be to be murdered, or if it was a recoverable crime to have grevious bodily harm resulting in me being crippled for life (at least that's how I feel). People of course react differently to events, no doubt some women would be more traumatised by it than others. One person may be scarred for years while another may recover very quickly. Neither of these reactions is 'right' or 'wrong' - but the language of some campaigners seems to suggest that the former response is the correct and normal one, and to forget the incident not long after would be abnormal. Incidentally this could create confusion or even guilt in some women who feel they have not reacted in the way they should to what is said to be the worst thing that could happen to them.

This is why to claim that no women ever get over it is simply wrong as it makes no allowances for differences in human psychology. I also deem it wrong to suggest or imply that the event would have the same impact, on, say a 40 year old mother or a sex worker than it would have on a 15 year old girl who has never before had sex. Yet some of the rhetoric I have seen does appear to imply this. It is obviously the same crime but the victims will react differently depending on their state of mind and their individual circumstances.

I feel somewhat that the feminist elevation of rape above other crimes stems somewhat from the Victorian notions of female purity and chastity, the idea of the vagina being the centre of a woman's being, or the gateway to her ultimate being, or the ultimate sanctity of penetrative sex ( if you see what I'm trying to get at, I've been thinking of the best way I can try to describe this).

In my view this seems to reduce women to the sum of their genitalia in a similiar way that sexist ideologies do.

I also notice that it tends to be the rad fems who particularly focus on rape more than the other schools of thought, and they are also the ones who have the prurient mentality in regards to porn and prostitution. I don't think it is a coincidence! There is also a trend they have to confuse or deliberately blur the lines between consensual sex and rape, hence the scares on US campuses that Katie Roiphe depicted and the confusion as to what precisely constituted date rape. An unpleasant and regretted sexual encounter is not rape. This is why I don't think it is Roiphe or Paglia who minimise rape but rather the people they attack, who choose to blur the lines between what is rape (a violent crime) and unpleasant, unequal yet still consensual sex. This, I feel, is belittling what is actual sexual violence. Likewise to claim that all or most men are potential rapists is to take the focus away from and minimise the pathology of men who do engage in sexual violence - if they are simply seen as a variation on a nomr.

voltaires_priest said...

At the risk of appearing thick, isn't it bleedin' obvious that there's a difference between drunken, consenting sex and (as Stroppy says) rape where one of the parties is so insensibly drunk as to not know what they are doing? Yes, of course a man or a woman can be pretty pissed and still consent to sex (I've done it myself on occasion :D) - however there is a line beyond which that no longer works, and it's a fairly clear one.

I would think, surely, that this is one of those instances where there are two distinct phenomena (one where someone clearly knows what they're doing, and one where they clearly don't), and the difference is fairly easy to spot.

Liz said...

So it should be (easy to spot). Why, then, is the extra legalisation proposed, which only serves to blur matters? The issue of non capacity is already addressed in the law, so what purpose are these proposals serving?

AN said...

Blimey, I go away for a few days ... ...

This is obvoiusly a difficult area, as it strays into deeply personal experiences, but if anything that should mean even more caution in extending the criminal law.

Personally I think that there has to be a difference between what we may consider ethically reprehensible, and what is criminal.

There was a good example many years ago in Australia where a man went through a bogus weddng ceremony in order to convince a woman to have sex with him. He was prosecuted for rape and acquited, becasue the judge held (correctly IMO) that although this was an extreme case if he was convicted of rape it would set a precedent that consent to sex based on lies would be a crime. So even thoug the woman in a common sense way had been raped, it was not good public policy for such behaviour to be criminal.

In the area of public policy, the issue of consent is already complicated enough by the fact that it is the perception of the man towards consent that determines whether or not the act is a crime, either knowing or being reckless as to whether the woman had not consented. That is already hard enough to prove with the sensible principle that no means no, without extnding that into muddy waters that yes sometimes means no.
personally i think this is all a part of New Labour's deeply authoritarian leanings.

Reuben_the_communist said...

'Personally I think that there has to be a difference between what we may consider ethically reprehensible, and what is criminal.'

exactly. One of the government documents on the matter i believe states that sexual relationships should be based on oppenness and respect - a laudible hame but hardly a matter for legislation

sappho said...

Louise: Your fellow feminist comrade extends her arms to you, I am truly sorry for your awful experience, as well as the insensitivity shown here.

Renegade Eye said...

When talking about alcohol and rape, it is not about being a little high.

I've known men to rape women, particularly who don't drink, and get sleepy.

The post is correct, if talking about being little bit high. Some people have no tolerance for alcohol.

Louisefeminista said...

Sappho: Thanks for the kind words and for the solidarity, comrade, it is much appreciated and needed.

Liz said...

Louise - I feel I owe you an apology if my earlier post appeared insensitive. I'm terribly sorry about what happened to you. All I'll say in my defence was that I only mentioned our earlier disagreement as it was directly relevent to the discussion here, but I should have showed some empathy. Sorry.

dafad ddu said...

What's happened to Socialist Unity Blog - has it died?

Jen said...

In case anyone is interested, this very issue has cropped up in the very intellectual and high-brow television drama "River City".

el Tom said...

And you are right.