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Key points
- Blackout drunk is not the same as passed-out drunk.
- People who are blackout drunk can still walk, talk, dance, and apparently make decisions.
- Verbal consent is the wrong criterion for consensual sex, since blackout drunk people can still talk.
- College administrators need to come up with a better approach to the so-called "rape culture" on college campuses.
Date rape on college campuses remains an intractable problem. Here are some points to consider: 1) colleges continue to be plagued by binge drinking, which includes drinking to the point of blacking out. WebMD says of alcohol-induced blackouts, “you may function normally. People around you may not notice anything different about your behavior. You might do the things you normally do, such as eat dinner, wash dishes, or watch television. But later you have no memory of doing them;" 2) college sex commonly occurs under the influence of alcohol; and 3) college sex, whether wanted or unwanted, commonly happens between people who don't know each other well, and therefore wouldn't be in a position to know this stranger is blackout drunk, especially if such drinking is habitual for the person and they seem normal.
So, imagine a scenario in which someone drinks to the point of being blackout drunk, consents both verbally and behaviorally to having sex, is taken at her word, but doesn't remember any of it the next day. Why does this matter? Because that person could hypothetically claim they were raped, and in some states that could entail a punishment of life in prison. That’s why it matters.
Verbal Consent as the Gold Standard.
In many legally bound microcosms such as college campuses, verbal consent is still lauded as the gold standard for consensual sex. Analytic philosophy, law, psychology and economics have all been guilty of trying to describe and proscribe human behavior in a vacuum. We’re still learning that people are not automatons, our behavior isn't predicable, our decisions aren’t rational, and, basically, human nature is a lot messier than the complex systems we invent to try and understand it.
In a perfect world, Person One asks for verbal consent from Person Two and once consent is given, a mutually beneficial social contract ensues—clean and simple. But that’s not how it is, and, disturbingly, the college administrators who create these policies know that better than anyone. The reports of rape on college campuses almost always involve excessive alcohol use in one or both parties and are replete with miscommunications and faulty memory.
Do we want the gold standard of consensual sex to be something that anyone can do while binge drinking? Why would we expect a verbal contract between two drunk people to hold up the next day, let alone in court? If we want a criterion for consensual sex, then we need a better one, because this one is broken.
Blasey Ford and Kavanaugh: Were they both telling the truth?
The reported event involving Dr. Christine Blasey Ford and Justice Brett Kavanaugh was fascinating in that they both seemed 100% confident they were telling the truth. And it's possible they both were. How is that possible? Dr. Blasey Ford could accurately remember the details of that night because, according to her sworn testimony, she had only one beer, and it was a terrifying night that’s seared into her memory.
It’s possible that for Justice Kavanaugh, the events recounted by Blasey Ford “never happened” because he was blackout drunk; his inebriated brain didn’t record any of it at the time, so there’s nothing there for him to remember. This supposition can't be proved, but it’s supported by circumstantial evidence and common sense—Kavanaugh was blatant about his affection for beer and boastful about his Dionysian shenanigans in college.
Now, here’s the connection with my argument about rape: even if we could somehow prove, retroactively, that Kavanaugh was blackout drunk that night, I expect we would still want him held accountable for his actions even if he doesn’t remember doing them. Take another example: a drunk driver who runs over a pedestrian. I presume we’d still want to hold him accountable for the pedestrian’s death even if he was blackout drunk and doesn’t remember anything after exiting the bar. Society seems largely in agreement on these intuitions.
Now apply that same reasoning to verbal consent given while someone is blackout drunk. Are they not accountable for it just because they have no memory of it? Someone accused of rape who claims that he was given verbal consent, which he acted on, could be telling the truth. But if she doesn't remember saying it, does that mean she didn't say it? Or that the sex shouldn't have happened? That's where things get complicated.
If this scenario accurately describes even one accusation of rape on a college campus, that should be enough to make us rethink verbal consent as a criterion for consensual sex because even a false accusation of rape can be enough to ruin a person.
Where do we go from here?
One might expect the University of California system to be progressive and informed on the issue but:
“Under the California law […] colleges must require “affirmative, conscious and voluntary agreement to engage in sexual activity,” which can be verbal or communicated through actions.”
Yet a person who is blackout drunk is conscious and can affirm verbally or behaviorally their voluntary agreement to have sex. They just might not have any memory of doing so. Colleges that continue to laud verbal consent as the gold standard for consensual sex are crossing their fingers that this idealistic proscription for rational, sober, and consensual behavior will work for their young populations who are away from home and could be experimenting with alcohol and sex for the first time.
