This is an interesting issue that I've seen come up recently. Incidentally, the law in this case is very severe in some states. I believe in MA that if a girl is intoxicated she is unable to give consent- sex is presumed to be rape. This may be true even if she has only had 2 or 3 drinks, which I think is going a little far.

I'm not sure I like what I hear being described as gray rape. Those situations sound pretty clear cut to me. But there are gray areas. When I was in college once I hooked up with a girl- no sex, but other stuff afer a fair amount of drinking. She was definitely an enthusiastic participant, but later she claimed not to have remembered. That freaked me out pretty good. Some people are much more prone to not remembering stuff than others, but I wasn't okay with that situation.

I noticed that some girls are a lot more interested at that stage, in 'having fun' after a couple of drinks, and that was really frustrating to someone not interested in pushing the lines of reasonable consent. That incident really drove home at least one realization for me: women weigh a lot less, so there's a pretty good chance that they're more drunk than you. (unless you really are a serious drinker, I suppose) If this makes it harder to arrange casual sex or make out sessions... well, just deal with it. There is a male culture out there that is totally at odds with this understanding. I don't know the best way to address this- it'll probably be really tough regardless.

"But there has never been any question in modern society that it is a crime to kill another person."

http://en.wikipedia.org/wiki/Violinist_(Thought_Experiment)

You open an interesting philosophical debate as to what it means to kill. When you say:

"I concede that there are different kinds of rapes (in that the circumstances vary), but I don't believe that "worse" or "better" rapes."

But isn't that implied? Is statutory rape between a consenting 18 and 16 year old really the same thing as a violent rape? If you're going to differentiate between degrees of rape, you have to draw the distinction between worse and not-as-worse rape --- especially if you're going to call an 16 year-old's 18 year-old boyfriend a rapist, because, technically it's rape.

I guess what's I'm not understanding is how you're vehemently opposed (period.) to gradations of rape (even though we already have statutory) but regard gradients of consent legally viable.

Actually, I contend that rapists ARE evil. Just because you don't act evil 99% of the time, I think, doesn't make you not evil. It makes you a good liar, and an even shittier person for not giving the people to find out what an ass you are before they get involved with you.

But that's a minor quibble.

I think that what disturbs me most about this account is how Moe says that she chewed him out afterwards and thinks that he "learned something." Yes. He did learn something. And you know what that something is? IF YOU RAPE A WOMAN, THE WORST YOU'LL GET IN RETURN IS A BIT OF YELLING.

I think that every woman absolutely has the choice whether or not to report her rape to the authorities. I respect Moe's choice to not report her rape, just like I respect every woman who makes that decision, though I do wish that women would report much more often. I do not resent the fact that that she did not report. Even if I wanted to resent it, I wouldn't have that right. But I do resent her assertion that giving her rapist a stern talking to somehow taught him something more than CALLING THE FUCKING COPS would have. If you want to enlighten your rapist, you should probably do it by reminding him that rape is a crime.

As for her idea to have women talk to men about rape so that they realize the severity . . . it seems strange, considering her desire to say that rape isn't really that big of a deal unless a second form of violence is involved. Her description of rape seems, in fact, to be the most common that I hear. Normally I would wholeheartedly support trying to get men to understand rape better, but it seems awful odd in this context.

Correction: should say "an even shittier person for not giving people the chance to find out what an ass you are before they get involved with you."

I do feel slightly more conflicted about the appropriate legal response to situations in which women (drunk or not) may not want to have sexual contact with someone, but also do not say "no," push back, or make any other outward indication that they are opposed.
If she doesn't want sex but isn't pushing away, what is she doing? Is she just lying there, not doing anything? Why would someone have sex with a person who isn't doing anything? Really, if she's not responding, she could be too drunk to know what's going on, she could be having a panic attack for mental health reasons, or possibly something else, but he shouldn't assume everything's fine just because she isn't talking. I have no problem with requiring guys to ask their partners if they're ok if they aren't doing anything, and making sure they're actually getting consent.

So introducing "degrees" of rape has the effect of diminishing the idea that it's a crime. Period.

As a legal matter, there are "degrees" of rape (the words may be different and may be set aside by are aggravating factors, for example), and the charges will differ depending on the circumstances. But if one person committed manslaughter and another committed 1st degree murder, we'd call both people killers. Same with rapists. If a person is sexually penetrated without consent, the person who penetrated the non-consenting person is a rapist.

Using a term like "gray rape" is harmful in two respects, one of which I think has not been discussed thus far. Yes, it disserves women who have been raped by acting like what was done to them is somehow not a crime. However, it also disserves men who are innocent of rape, conflating their non-rape actions with actual rape. If a woman does specifically consent and then regrets having done so, it's not rape, and it's wrong for a woman to claim that it's any form of rape, "gray" or no. Granted, I think this latter category is a much smaller subset of the total amount of "gray rape" examples I've seen, but if we open the door to some shade of gray between what is and is not rape, we open the door to men being called rapists who didn't actually commit rape.

As I said on the prior thread, women who think they might have been raped should get emotional counseling and legal advice. Whatever happened, it was a bad experience that affects one's sex life, and not dealing with it when it happens is a bad thing. Of women who get help, some will find they were raped and may decide to do something or may decide to do nothing. Some will find they were not raped, confirming their feelings on the matter and making it easier to get to closure on what was just a bad night, a cautionary tale. Either way, a woman will do better for herself and others by being honest and informed about her life.

And rape isn't something that's committed only by guys who are OMG PURE EVIL. Even if 99% of the time he's an upstanding citizen and all-around awesome dude, but he still wouldn't listen that one time when you said "no," he's still a rapist -- and it's still rape.

I beg to differ. If the rapist was totally aware that the woman was extremely intoxicated, or sleeping, or if the woman had explicitly said that she did not want to have sex, then he, at the time, was most definitely a vicious, malevolent person. I believe that, depending on the situation, rapists can reform, but at the time of the rape, if they were knowledgable of the situation, they are vile. Forcing someone to engage in sexual acts without their consent is probably the worst thing anyone could ever do to another person.

I apologize in advance if this comes out sounding wrong.

Joe said: "Is statutory rape between a consenting 18 and 16 year old really the same thing as a violent rape?".
Umm, no.
Where did you get that idea from?
No one has mentioned statutory rape, which by definition is a whole different ballgame.
What are you arguing for, exactly?

Statutory rape is a crime because even if an under-age person "consents" to sex, our societies believe that under a certain age, one cannot consent.

This is a completely different thing to acquaintance/date rape (the most common form of rape by a long shot) being considered less severe than stranger-dragging-you-into-bushes-rape (a statistically rare kind of rape).
I don't understand, Joe, just what your problem is with our opposition to the watering-down of acquaintance/date rape to be seen as a more benign kind of crime.
Thoughts?

Just so we're all clear:

New York Penal Law

Rape 3rd & Sodomy 3rd. Penal Law 130.25 and 130.40 – Class E felonies.

1. Sexual intercourse,

2. without consent

3. where the lack of consent is not due to "incapacity to consent." That is, the victim actually expresses lack of consent by words and/or actions during the incident. Use of force is not required. No means no.

The new definition of lack of consent in Penal Law 130.05(2) adds "circumstances under which at the time of intercourse, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the [defendant’s] situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances."

Gray rape? Give me a break.

JOE: "Statutory rape is a crime because even if an under-age person "consents" to sex, our societies believe that under a certain age, one cannot consent.

ANORAK: This is a completely different thing to acquaintance/date rape (the most common form of rape by a long shot) being considered less severe than stranger-dragging-you-into-bushes-rape (a statistically rare kind of rape)."

I thought the comparison was clear?

Statutory: We don't accept the 16 year old's consent because we deem her unable to consent.

Alcohol: We don't accept consent from the woman who was drinking because we deem her unable to consent.

The issue can sometimes be cloudy in the first case if the man has reason to believe she is above 18 (e.g., fake ID).

The issue can sometimes be cloudy in the first case because there is no clear standard for evaluating when the line changes from able to consent to unable (1 drink? 2 drinks? 3 drinks?), even if the consent is "enthusiatic".

I think we all agree that if a) a person says no, then the guy/girl should stop and b) If a person is staggeringly drunk, they are unable to consent.

What is less clear to me (the gray part) is how to determine when the point switches from able to consent vs. not. It's easy to say "if you've had any drinks at all than you can't consent" but many men and women certainly don't want to live by those rules.

Both those quotes are from me.

Whoops, Anorak, my bad - I thought you were replying to the post above Joes, which was talking about consent vs. not when drinking.

Here's my problem with the manslaughter/2nd/1st degree murder:rape/gray rape analogy.

With manslaughter etc, the emphasis is on the perpetrator's state of mind, premeditation, factors influencing him. It other words, the different factors that made him kill someone.

But with this 'gray' rape malarkey, the emphasis is entirely on the victim's end of things. Did she know him, did she have too much to drink, did she consent to making out but nothing further?

And what the hell does that have to do with anything? As has been pointed out here many times before, women don't get raped cos they were drinking and making out with someone. They get raped because they're in the presence of a rapist. None of the above factors influences the rapist's decision to force himself upon a woman (or man) without their consent. There is nothing fucking gray about it.

The guy who raped Moe was a rapist. She might not want to call him that, she might not want to use any of that terminology in relation to her or to him or to her experience, and that is her right - but, legally, it is still rape. And to suggest that we change the dictionary does a massive disservice to every woman (and man) who gets raped.

No worries UCLA ;o)
I was only replying to Joe, because I thought he/she was throwing in a bit of a red herring.

Dinogirl, Momo, WORD!

But in the end, I keep coming back to the idea that we need to strongly advocate for the idea of enthusiastic consent

Yes! In terms of preventing rape, this is the key point that needs to be popularized.

I've heard some women complain that positive consent is a turn-off and men need to "read the signals." The only reliable signals are "yes" and "no," positive consent needs to be the norm.

When I first saw the header of "gray rape" on Feministing, I thought it was some disgusting term for an outbreak of rape of the elderly. Largely because "gray rape" doesn't exist, and I figured that was the only possible thing that you could be talking about.

I think Joe and UCLA make some good observations. Not many things are black and white, and I don't really see why rape should be. Every situation is unique... I don't think any of us want to live in a world where a guy can wake up in the morning next to a girl who, when they were both intoxicated, gave "consent" but maybe not "enthusiastic consent" but maybe neither can really remember, and end up in a jail cell for 30 years next to the guy who violently rapes just for kicks. I accept rape as a very serious, underreported, under-punished crime that demands more attention and educated than it gets - but I also see it as just as "gray", that is, not black-and-white, as most everything else.

LOL at "...end up in a jail cell for 30 years..."

Nobody here or at Jezebel is claiming REGRETTED SEX = rape. But waking up to find a man pounding you means you're being raped. Being penetrated even though you're too out of it to speak or nod your head means you're being raped. Stop it with the "what if she just regrets sleeping with him" bullshit. It's a distraction and nothing more.

Clearly,this an attempt to make rape socially acceptable in certain situations. And obviously it mustn't be.

"With manslaughter etc, the emphasis is on the perpetrator's state of mind, premeditation, factors influencing him. It other words, the different factors that made him kill someone.

But with this 'gray' rape malarkey, the emphasis is entirely on the victim's end of things. Did she know him, did she have too much to drink, did she consent to making out but nothing further?"

Excellent point, Dinogirl.

This thread needs a group viewing of "Superbad" to properly continue this discussion, specifically a thorough dissection the Evan+Becca bedroom scene.

I'd call it "regretted sex", but by the new proposed definition of "enthusiastic consent", who knows? What happens when nobody remembers the details?

It's not clear, and that's the point. I don't want to come off as an apologist for drunken assholes (I've made it through my early twenties without anything but enthusiastically consensual sex and obviously I intend to keep it that way), but I just don't understand the purpose of trying to cram a menagerie of complex situations into one binary. I don't think anyone benefits from that.

Jeff, I know that you didn't want to "come off as an apologist for drunken assholes," but I really don't think the whole "intoxication" scenario is that complex of a situation. If you black out as a result of drugs or alcohol, and you get in a car and kill someone, you're still a killer. If you're intoxicated and you molest a child, you're still a molester. If you're drunk and you rape someone (whether they're coherent or not), you're still a rapist. And I think many other posters have made that point much better than I have.

But when a rapist is shitfaced drunk, it just means they have a substance abuse problem as well; it doesn't make rape a "complex situation," nor does it excuse rapists from their actions.

What you say about "no" is simple. I agree with it, and everything else you say about rape.

The thing that you will never get around with rape, however, that makes it such a fundamentally controversial subject, is the he said/she said nature of it all.

In most rapes we get physical evidence and other corroborative evidence. But in some cases you end up with, "who do you believe, him or her?" Throw alcohol, wild people, etc., and you have a hung jury. People are reluctant to throw others in jail, believe it or not, when they are not satisfied beyond a reasonable doubt.

And while I have no doubt most women who claim rape are being honest and were indeed raped, the inescapable reality remains: we only have her word to go on (sometimes).

I would think that most reasonable people would agree that once the word "no," or other such actions that indicate as much are uttered or undertaken, then it is game over for the dude.

But what happens when we can't show the "no" was ever said?

Consent is not the issue, proof beyond a reasonable doubt is.

In other criminal trials, things are usually straight forward. Indeed, in many rape trials/cases it is also straight forward. But sometimes you end up with nothing but a woman's word, "I said no." Throw in the other factors I eluded to, and many others, and a guilty verdict gets harder and harder.

Make no mistake: I am not making any rape apologist argument, simply that rape is a unique crime that carries with it unique complications.

I understand the desire to respect the victim of a rape's definition of that rape, however, I believe that what happens for a lot of women is that labeling aquaintance/date rape as rape is a very difficult process. It may feel as though you are taking something away from those women who narrowly escaped with their lives if your rape was not violent. However, even when it is not violent, it has lasting emotional and physical consequences. The idea of gray rape by its name, simply implies that it may or may not actually be rape, and this (even with enthusiastic support from victims) to me is unacceptable. It is so important that feminists/other supporters insist upon not "gray" labels so that women who have experienced it can eventually label their experiences when they are ready with a label that names it for what it is.

"If you black out as a result of drugs or alcohol, and you get in a car and kill someone, you're still a killer. If you're intoxicated and you molest a child, you're still a molester. If you're drunk and you rape someone (whether they're coherent or not), you're still a rapist."

I don't see how any of that is relevant to his point. No one here (presumably) thinks that it's okay force someone to have sex with another person when you are drunk. No one is arguing that.

What they are saying is that it isn't clear what amount of alcohol renders a person able or unable to consent. Can a person still consent to sex if they've had 1 drink? 2 drinks? 3 drinks? Can a "buzzed" person consent?

Even if you were to create some formal rule (e.g., a person whose blood alcohol is greater than .05 can't engage in any contracts - sexual, business, whatever), you then have the ambiguity of how the partner can reliably assess this.

Some people's response to this is to simply say "if you've had any drinks at all, you're not able to consent". But obviously many people feel they can consent if they've had X number of drinks - do you have the right to tell them they can't?

We all agree that there are a wide number of situations that are clearly rape, that a woeful number of cases are prosecuted, and that many women are horribly harassed when they try to seek justice for their assault. But that doesn't mean there are areas where sometimes it can be difficult because people have different opinions about when they can and can't consent.

The "enthusiastic consent" idea may be fine for first time hook-ups, but what about long term relationships? Sometimes you're feeling tired, and you consent because you want to please your partner. In those cases it can be hard to muster much enthusiasm, though one tries wearily. That's not rape. It's not even gray rape.

Sometimes we do things to be nice, and not because we really want to. Isn't that okay? What about "altruistic consent."

Please forgive me if this has already been noted, but many (probably most) rape victims do not protest during the assault. No saying 'no,' no kicking, pushing, punching or otherwise fighting back. They freeze. They do the best they can to survive in the moment, to get through a situation in which they have absolutely no control. To relent is not the same as consent.

I have no problem with saying that sex with someone when they are too out of it (or too scared) to actively dissent is still rape. I do think you run into difficulties when you argue that someone is unable to consent if they are drunk (even if they are enthusiastically consenting at the time). To me that sounds like regretted sex rather than anything else. It would also presumably apply to men being unable to consent when drunk as well - with the result that in a large number of situations each of the people involved would be deemed to have raped the other.

Certainly a drunk crime is still a crime, but I was referring to how that makes consent more complicated.

Consider the crime of killing someone. Yeah, yeah, no matter how you could still accurately be called a "murderer". But there are wildly different punishments depending on what happened. A pre-meditated, first-degree murder can get someone locked up for life. On the other hand, I knew a guy who punched someone out in a bar fight, the guy hit is head on the ground and died instantly. He was in jail for a couple of months, and I don't think that's wrong.

Not that you can "accidently" rape someone (well, actually, wasn't there the whole thing about sleep-raping? bogus? maybe, but complicated at least), and I think the crime of rape can be similarily broad.

I can actually imagine a pretty limitless number of situations that are varying seriousness of rape. This is probably going to stir up some shit, but well, I guess that's the point of discussing it, and I certainly may be wrong.

- say two people are hooking up, the woman changes her mind and says "no". The guy maybe doesn't notice right away or just doesn't quite get the message at first and doesn't quit for say, I dunno, 20 seconds. That's 20 seconds of rape. Is that the same as a violent, pre-meditated rape?

- Boss says, "have sex with me or you're fired". In a sense, it's forced. Is it the same as every other kind of rape?

- Date rapist slips a roofie. The woman wakes up having been raped. This is the most henious, I think, of the three - a serious crime and the bastard should be put away for quite a while. But I would argue that compared to a violent rape, the trauma probably isn't quite the same, and that's a factor that's considered in murder cases, I believe (correct me if I'm wrong).

I think this could go on pretty indefinitely. Once again, my point is not to minimize anything (I can't really begin to imagine being a victim of this crime), but only to point out that there are many scenarios that are not equal.

Now, maybe the term "gray rape" is a shitty one because it implies that some scenarios are "not rape". I'm more concerned at pointing out scenarios that *are* rape, are different.

I do not consider all people who have committed manslaughter to be "killers." I'd be more likely to call someone who killed in self defense a "killer" and he/she would not be guilty of any crime. To me "killer" suggests intentionally killing another person, which is not usually an element of manslaughter.

This is just to say that grey areas exist in many areas of the law, not to mention in the use of particular words and language. Just because grey areas exist does not mean that a term like "grey rape" is a useful category or concept. Or, if it is useful, that people would necessarily agree on what the grey areas are.

The scenarios we're discussing, Jeff, are implying that the woman is clearly saying NO repeatedly, and the guy proceeds. At least that's what Moe presented. It was said to him, repeatedly. He still continued.

The boss saying "have sex with me or you're fired" scenario is well-known as sexual harassment, but it isn't rape. It is, however, still prosecutable.

To me, drunken consent is not that complicated. It still follows the standard of enthusiastic consent. I've had sex while drunk, but I've always been actively into it and it's been good times. On the other side, if a woman (or a man, for that matter) isn't actively participating, then she's probably too drunk to consent and you should either back off or establish clear, verbal consent. Now, there could be problems later figuring out exactly what happened, especially if one or both people can't remember clearly, but that doesn't make the actions gray, it just means we're not sure what exactly happened.

Jeff, all rape is not the same. In fact, I'd probably say that each rape is different. But, I don't think you can make a scale where drugged rape is better/worse than coerced sexual harassment rape (personally, I think I'd rather be unconscious, but I've never been raped so I may have no idea what I'm talking about). Sure, violent rape is worse, but that's kinda like saying that violent mugging is worse. Violent rape is like two crimes (assault + rape), but rape is still rape, and while there's many different kinds you can't really put it on a scale.

People always get really weird about "mind-changing" rape (and yes, it's still rape, like any other kind). It's like they think a woman might quietly say no, and he might not hear her and keep going, and that's what we're talking about. Well, no, that's not really how things happen. Myself, (TMI territory!) I have personal lubrication issues, and sometimes sex will hurt and I have to stop it early. When I need to stop, I don't quietly say "no" and lie back while in pain because he didn't hear me. I clearly say "Stop" or "We need to stop" and push up on him, and repeat as necessary so it's clear to him that I need to stop. Every guy I've been with has stopped almost instantly. It's not that difficult. Really, how long could you you continue while a girl is telling you to stop and pushing you away? For most people, their morality would kick in almost instantly. So don't worry, it's not like you could be dating a capricious girl and she changes her mind and you're a rapist. If she needs you to stop, you'll know, and you will. Any man who doesn't stop in that situation is a sick, sadistic jackass who deserves the moniker of rapist.

And while I have no doubt most women who claim rape are being honest and were indeed raped, the inescapable reality remains: we only have her word to go on (sometimes).

And why would we ever believe a woman? Women are notoriously lying sluts, after all.

(For fuck's sake. *eyeroll*)

Actually, I would argue that using the force and power of your position as a boss to force someone to have sex with you is, in fact, rape. There are many kinds of force, after all, and physical force isn't all that exists. Some rape laws explicitly note this. Sure, she could quit. But the woman faced with a knife or gun could choose to take her chances with that as well. When you have no acceptable choice to say no (you need the paycheck, you can't get another job quickly, you have kids to feed, etc. etc.), then you've been raped. Period. Doesn't matter if it's because you're in fear of your life, in fear of a beating, or in fear of getting evicted for non-payment of rent.

And, Jeff, as someone who's been drugged and sexually assaulted...fuck you. (A) You can't compare the trauma of different kinds of rape and say that one is not as bad as the other. Anytime control of your body passes from you to another person who uses it against your will, you've been fucking traumatized. (B) There's a special kind of hell in knowing that, not only could you not stop the guy from doing what he wanted with you, but you didn't even get the chance to try. Not worse than the hell of other situations, not better. Just different.

The point is that no woman should have control of herself taken away. Ever. Under any circumstances. If a man sticks his penis into a woman without her willing consent, that's rape. Period. No discussion, no negotiation, no wavering on the part of other people changes that fact. The woman has been raped. The man is a rapist. There's nothing gray about that.

Someone close to me shared her experience of what Cosmo calls "gray rape" and it was clearly rape. The only reason it wasn't rape was that it took place 30 years ago when husbands could demand and force sex without penalty.

Great post Ann. You set a great example for respectful disagreement. I feared this would turn into a flame war, but you showed that women are abundantly rational. And how refreshing to read that you're conflicted about when the drunk party doesn't say "no." Just waiting for the inevitable battlecry: "SLUT SHAMING!!!"

But with this 'gray' rape malarkey, the emphasis is entirely on the victim's end of things. Did she know him, did she have too much to drink, did she consent to making out but nothing further?

Dinogirl, this is exactly what I keep coming back to anytime the subject of "gray rape" is brought up.

Our social definitions place the emphasis of rape on the victim, and we tend to ignore the fact that there was a person who willfully did the raping. Hence society's desire to seek out what the victim did "wrong," and why these victims of "gray rape" want to define their experience as less than. I realize the necessity of allowing a person their feelings about their own experiences, and everyone should of course be allowed their own reaction or lack of reaction. But a lack of reaction doesn't mean that the rape didn't happen. And the fact that women want to define their experiences as "rape-lite" sadly says more about the way our society deals with rape and rapists than it says about the victims.

The onus of rape isn't on the victim, it's on the rapist (and in that way, the blame too falls squarely to the rapist). The word "rape" conjures up all sorts of images of broken and traumatized women, but that's wrong. Everyone reacts to different crimes in different ways, and we don't define the crime based on the victim's reaction... the crime simply is, after the criminal perpetrates it.

If someone steals my purse but I feel okay about it because I didn't really care for the purse, or because all of my valuables were in my backpack, doesn't mean that my purse wasn't stolen. I'm perfectly entitled to my feelings and my nonchalance, but it doesn't change the fact that someone snatched my purse. The point being that my reaction doesn't define the crime, not that rape is like purse-snatching...

I don't mean this in any legal sense of course, as I'm pretty clueless about that end of the discussion. Just in terms of the language of our culture, here.

[Note: I'm not the same Jeff that already commented in this thread.]

I think there's two things going on that confuse the discussion.

The first is the confusion between "legal" and "moral" rape. More specifically, it's the equation of (a) the laws concerning rape and what they criminalize; (b) the judicial process of trying someone for rape; and (c) the actual acts we're talking about. A lot of the discussions on feminist boards about "gray areas" are really about this last dimension; it's about making a public statement that "she didn't say no" or "she said yes after I kept asking for hours" or "we were both drunk and don't remember what happened" are not acceptable excuses, even if justice concerns make these cases difficult to criminalize or prosecute.

The second is the confusion between how a victim should view the act and the perpetrator, and how society should. Maybe it's healthier for a victim to decide to forgive a rapist, or to decide that the experience wasn't actually rape; a lot of outraged people complain that, when we as a society define these acts as rape, we're telling them how they should feel about it (as if defining them as "not rape" or "gray rape" doesn't).

Like Kimmy, I'm incredibly insulted by Jeff's assumption that he can tell which kinds of rape are better and worse, more and less painful than others. And thank god, I haven't ever been raped. So I can only imagine how that would sound and feel to someone who has.

I'm really fucking sick of every conversation about rape that occurs, there's one person who always insists that RAPE IS OH SO CONFUSING, and that one person almost always happens to be a man and almost never seems to realize the insanity, irony and shitty nature of arguing about rape with a large number of women, while simultaneously trying to portray himself as not an asshole.

When I hear the term "gray rape" I think of a gray area, where no one knows what happened.

Example - Say a woman ends up sleeping with someone while drunk. Neither person remembers quite how it happened, and both people are drunk past the point of consent. No one said no, or protested. No one is passed out, non-responsive.

Is this rape? by definition of having to consent first, it is rape for both the woman and the man.

Why is it assumed the man is able to consent, while the woman isn't? If both people were involved in the event (and i mean, actually involved, not lying passively there) - why is it assumed that the woman unable to consent, but the man is able?

This "gray rape" talk just pisses me off to no end. I was date raped once, and raped by a live-in boyfriend another time, and I'm sure any jury would have let the bastards off because somehow it would become a he/said she/said, and I never called the cops. Did I say no? Yes. Did the assholes pay attention? No. How many times do they have to hit you in the face before you back down and become compliant? So, yes, I stopped fighting and let it happen BOTH times. What the hell else was I supposed to do? Anyone who says a woman needs to fight until she's dead in order for it to be rape is total effing moron.

Enough with gray rape. Doesn't fucking EXIST.

“Example - Say a woman ends up sleeping with someone while drunk. Neither person remembers quite how it happened, and both people are drunk past the point of consent. No one said no, or protested. No one is passed out, non-responsive.�

Raane, that’s impossible. Drunk past the point of consent= passed out=not able to actively take part.
If both of them had passed out, how did the sex take place?

Also, if you wake up in the morning and none of the parties involved can remember anything, you can’t prove anything, you can’t press charges.

I remember a few years ago at my school, some girl reported to the campus police that two student athletes and two recruits she was drinking with the night before had raped her. I remember very clearly reading this statement by the police in the school newspaper: “You can’t just say that I got intoxicated and couldn’t give consent�. So all you guys out there who have something on your conscience, don’t worry you won’t be caught.

I think we all agree that if ... a person is staggeringly drunk, they are unable to consent.

I certainly don't agree with that, at least in the legal sense. You have to be responsible for your actions, just the same as the initiator in that scenario. If you got yourself drunk (your drink wasn't spiked etc)...

Also, I'm looking at Massachusetts' definition of rape on the Interweb , and it mentions nothing about intoxication. Mpowell, can you say where your information comes from?

So, alaric, you're saying that if someone is so drunk they can't stand up, they're fair game for anything anyone wants to do to them? Just because they chose to drink? How far does this extend in your mind? Is it just rape? How about robbery? Or murder? After all, either way the victim chose to drink, right?

UCLA: I think we all agree that if ... a person is staggeringly drunk, they are unable to consent.

ALARIC: "I certainly don't agree with that, at least in the legal sense. You have to be responsible for your actions, just the same as the initiator in that scenario. If you got yourself drunk (your drink wasn't spiked etc)..."

Seriously Alaric? Really? WTF?

So if you got totally smashed, someone presents you with a business contract, and you sign away the deed to your house, your responsible for your actions?

If so, please please please please please please please go drinking with me sometime. I really need a house.

Kimmy,
First of all, my own standards of behavior are guided by more than the legal minimums. Just because I don't think someone should be prosecuted for having sex with someone who is drunk and "oh, do me hard" should go to jail, doesn't mean I think that behavior is ethical or something I would engage in.

Second, I guess I fail to see the comparison between robbery or murder. You can't legally consent to being killed. And if you consent to someone taking your property, it isn't robbery. (I mean, the next time you're drunk, go give someone your wallet, and then the next day try to prosecute them for "robbing" you.).

Once in college, I was staggeringly drunk and this, um, portly girl started flirting with me. I remember dancing and making out with her as the room spun around me. We then started staggering back to our dorm to fool around. Mercifully I ended up puking on the grass and never made it back. But if I hadn't, do you really think this girl would be a "rapist"? It's absurd.

UCLA - whether or not that would be a valid contract, you couldn't criminally prosecute the guy you made it with.

Seriously - there's not a jurisdiction in this country where having sex with someone's who's drunk is a crime. But please, tell me how you'd like to see this written into law. "Staggering" - is that it? If a girl (or boy) can walk in a straight line, then it's okay to have sex with them, but not if they sway a bit? If two people who are "staggeringly" drunk have sex with each other, can they both be prosecuted for rape?

"Sometimes you're feeling tired, and you consent because you want to please your partner. In those cases it can be hard to muster much enthusiasm, though one tries wearily."

And you think spouses or partners who do this would press rape charges, why?
You're talking about a relationship, where certain things are understood.
It seems like a lot of people REALLY believe all women are vindictive bitches just waiting for the right opportunity to make a false rape charge.

Above, I meant to write, drunk and SAYING "oh, do me hard"...

"Once in college, I was staggeringly drunk and this, um, portly girl started flirting with me."

And obvi you wouldn't ever want to have sex with a "portly" girl. :rolls eyes:
You're not among your frat brothers here.

Yes, nothing more absurd than making people responsible for choosing to have sex with people who are out of their skulls. God forbid we hold the rapists responsible for their actions. No, it's only drunken girls who need to be held responsible for their actions. Everyone else is off the hook.

If someone finds a person who is too drunk to walk straight, see straight, talk straight, or think straight and takes their wallet, it's robbery even if the drunk person doesn't resist. Same thing with sex. Even if the drunk person doesn't resist, it's still fucking rape, because the drunk person cannot consent.

It really isn't complicated. If you have a question as to whether someone is capable of consenting, don't sleep with them. If you have a question as to whether someone has consented, don't sleep with them. If you have the slightest doubt that a person enthusiastically and totally wants to have sex with you right at that moment, don't sleep with them.

Anything else is just trying to excuse rape.

I guess this means Alaric wouldn't mind if some dude were to penetrate him while he was passed out drunk in a gutter.

I'd like to share my story because I've always *called* it rape but never prosecuted or felt all that traumatized by it.

There was a guy I fooled around with for a while: massages, making out, that kind of thing. Usually while we were watching TV. One night, while giving me a massage, he removed my pants (which wasn't infrequent)...but then he removed his as well and started trying. When I realized what he was doing, he was already partially in. I tensed, rolled over, and said "no". I got dressed and left.

We never talked about it, eventually we went back to messing around. I never thought to label it or get tested or anything. Much later, a friend said something about how 1 in 3 women you know has been raped and that most of it is date rape. That was the first time I thought to characterize it as rape: non-consensual sex. I felt like I should feel much more traumatized, but I really didn't. But it was rape.

Nope, sorry Kimmy, your wallet example isn't correct, and you are doing rape victims a disservice by conflating rape and drunken sex.

NY Penal code Section 160.00 defines robbery as "forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny. "

Luckily nobody's calling drunken sex "rape." Having sex (raping) with a girl or woman who is TOO DRUNK to give consent is what we are talking about.

This has been a really interesting, and timely argument for me. I just recently, two years after it happened, confronted the former-friend who raped me. It has taken me those two years to stop blaming myself and see the rape for what it was. For that time, I thought that I had done something wrong, because I was drunk. And I was so afraid of becoming a victim. But the realization, which came with the help of talking to friends, that I was raped, was the step I had to take to start healing myself.

Someone posted:
"I do wish that women would report much more often."

I had no idea that someone would consider what happened to me "gray rape." Yet, because of conditioning, and the status of rape in our society, I struggled for so long to call it rape. I feel like the same things that went through my mind those two years ago - and led me to believe that I had done something wrong - are the same things that have lead to this idea that there can be a "lesser rape."

I fear that if things don't change in order for more women to realize immediately, and not struggle though it, that have been raped - then rape under these circumstances will continue to go un-reported. And like me, women will be afraid to confront the person who raped them. It seems like creating "levels" of rape will not help to solve this problem.

Oh, and alaric, check this out. It's from a rape law here in Oklahoma. Emphasis mine.

A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator under any of the following circumstances:

1. Where the victim is under sixteen (16) years of age;

2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;

4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;

5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;

6. Where the victim submits to sexual intercourse under the belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief. In all cases of collusion between the accused and the spouse to accomplish such act, both the spouse and the accused, upon conviction, shall be deemed guilty of rape;

7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or

8. Where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system.

B. Rape is an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator if force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person.

To save space, I'll only quote the relevent portion of a Texas law about sexual assault. This is under the section defining what is meant by lack of consent:

"(3) the other person has not consented and the actor
knows the other person is unconscious or physically unable to resist;"

The New York City law states that a person is incapable of giving consent if they are "physically helpless."

And, finally, from the Washington DC criminal code:

A person shall be imprisoned for not more than 20 years and may be fined in an amount not to exceed $200,000, if that person engages in or causes another person to engage in or submit to a sexual act in the following manner:

(1) By threatening or placing that other person in reasonable fear (other than by threatening or placing that other person in reasonable fear that any person will be subjected to death, bodily injury, or kidnapping); or

(2) Where the person knows or has reason to know that the other person is:

(A) Incapable of appraising the nature of the conduct;

(B) Incapable of declining participation in that sexual act; or

(C) Incapable of communicating unwillingness to engage in that sexual act.

Do any of them use the word "drunk"? No. Can any reasonable person with half a brain (who is not looking for excuses to give rapists) see what this means as far as the ability to consent is concerned? Yes.

"UCLA - whether or not that would be a valid contract, you couldn't criminally prosecute the guy you made it with."

So if you signed that document when you were plastered, i took the deed, and moved into the house, you couldn't call the cops?

Sweeeeeeeeeet. Seriously buddy. Let's go get hammered. I have a little business proposition for you.

For most people, their morality would kick in almost instantly. So don't worry, it's not like you could be dating a capricious girl and she changes her mind and you're a rapist. If she needs you to stop, you'll know, and you will. Any man who doesn't stop in that situation is a sick, sadistic jackass who deserves the moniker of rapist.

Exactly. This is a red herring. It is not rape if she/he says stop and you stop. I've stopped. I also don't get how pausing for a few seconds before beginning, raising an eyebrow, and saying "ready honey?" is unsexy. It's a simple courtesy. (It's also a good opportunity for some sexy talk if you are so inclined.)

BTW, I began to get more explicit about consent after a night of regretible sex. She told me the next morning that she only had sex with me because she needed a place to stay. It made me feel like shit for months for not recognizing her enthusiasm waned somewhere between making out on Canal street and bed. I'd have let her crash with nothing but good memories of fooling around. Anyway, lesson learned and I'm sure my sex life is the better for it.

Just a bit o' historical accuracy regarding this:

feminists had to work damn hard to get courts and society to recognize that rape is a crime

Feminists have done lots to expand the definition of rape. They have also done a lot to change the "why" of rape law away from "stay off my property (e.g. 'my' woman)," and to add marital rape, etc. All good, and important, things. But they didn't create the criminal charge.

Kimmy,
It's not as obvious as you may believe; the layperson's language is often crucially different from legal language. Just like the word "rape," the words "legal consent" and "unsound mind" probably don't mean what you think they do.

I've analyzed a similar Oregon law on my site, with much lengthier explanations of a similar statute.

I'll talk about one example here. First, read this paragraph from your cite:

Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit

The crucial language is this: administered by or with the privity of the accused
That means that a narcotic that is NOT administered by or with the privity of the accused is not covered in that sentence. If you get high yourself--not covered. If your friend gets you high and an unrelated person takes advantage of you--not covered. And so on. It's really quite complex.

Awesome, Ron O. Thank you.

Anyone who thinks it's "confusing" or "might take a while to pull out" when a woman says "no" or "stop" might want to consider how quickly they'd be able to pull out if her dad/brother/roommate walked into the room.

I appreciate the link, Ann.

You know, I'm finding this thread oh-so-depressing. And totally familiar--some folks tried the same thing in comments here. I find it incredibly telling that some commenters are focusing on laws, and what exactly they could get away with with women before it can be "defined" as rape. Fuck that.

I think Amanda said it best here: "The best way to avoid raping is to have sex with women who want to have sex with you."

And I seriously don't want to hear about you can't tell if a woman wants to have sex, what if she doesn't say no, what if this situation arises, etc. Fuck you, if you can't wait to have sex with someone that actively wants it then you're an asshole and maybe a rapist.

I'm completely sick of these conversations focusing on what men can get away sexually with so they won't go to jail or don't have to feel guilty. How about focusing on something that could really create change and eliminate rape (check on Thomas' now-famous comment here) instead of trying to figure out what men can away with.

YES, Jessica. Thank you.

"And I seriously don't want to hear about you can't tell if a woman wants to have sex, what if she doesn't say no, what if this situation arises, etc. Fuck you, if you can't wait to have sex with someone that actively wants it then you're an asshole and maybe a rapist."

But that is the main problem. What if a person actively, enthusiastically, willingly, whole-heartedly, wants to have sex, but has been drinking? When does the threshold cross from "able to consent" to "not able to consent". 1 drink, 2, 3, 4, 5?

The obviously solution is "when in doubt, don't have sex", but that still doesn't make it clear when, if ever, there is a clear dividing line between able to consent and not able to.

My own standards of behavior are guided by more than the legal minimums. Just because I don't think someone should be prosecuted for having sex with someone who is drunk and "oh, do me hard" should go to jail, doesn't mean I think that behavior is ethical or something I would engage in.

Yet why do we always decide that the "legal minimums" are all we may expect of other people? Why are we so loath to say "this is wrong, this is rape"? I mean really speak out against this and hold people to that standard of behavior, not simply offer a dismissive "oh, of course *I* think it's wrong and wouldn't do it, but what can you do?"

"I'm completely sick of these conversations focusing on what men can get away sexually with so they won't go to jail or don't have to feel guilty. "

Is that really the issue? Or is it that there are some areas that are truly to confusing to people, and that different people have different notions of when they are or are not able to consent, and that having sex with a man who has been drinking is viewed differently than having sex with a woman who has been drinking? These all seem like important questions to me, at least.

Just FYI, this is the "Thomas" quote that she referred to:

I think the key to changing the rape culture is to change the view of sexuality from a commodity model to a performance model.

What I mean by a commodity model is the view that sex is something women have and men get; what Amanda Marcotte refers to as the "pussy oversoul" that women are guardians of and that men make applications for access to. Sex is like a ticket; women have them and men try to get them. Women may give them away or may trade them for something valuable, but it's a transaction in a good.

The commodity model is shared in common by both the libertines and the prudes of a patriarchy. To the libertine, guys want to maximize their take of tickets. The prudes want women to keep the tickets to buy something really important: the spouse; provider, protector, etc.

That whole model is wrong. Under that model, consent is not an affiramtive partnership. Instead, if someone tries to take a ticket and the owner doesn't object, then the ticket is free for the taking. Under this way of thinking, consent is the absence of "no." It is therefore economically rational to someone with this commodity concept of sex that it can be taken; rape is a property crime in that view. In the past, the crime was against the male owner of women (let's not sugar-coat it; until very recently women were in a legal way very much male property and still are in many places and ways). Even among more enlightened folks, if one takes a commodity view of sex, rape is still basically a property crime against the victim.

The better model is the performance model, where sex is a performance, and partnered sex is a collaboration between the partners; like dance or music.

Under a performance model, consent is not the absence of "no." Consent is affirmative participation. Who picks up a guitar and jams with a bassist who just stands there? Who dances with a partner who is just standing there and staring? In the absence of affirmative participation, there is no collaboration; forcing participation by coersion is not a property crime, but a crime of violence like kidnapping.

Under this model, looking for affirmative participation is built into the conception. If our boys learn this from their pre-adolescence, then the idea that consent is affirmative rather than the absence of objection will be ingrained.

The performance model has the added feature that it eliminates slut-baiting. A commodity is finite; if women give or trade away their tickets, they have lost something of value, and the relevant question is what they got in exchange. If sex is a performance, then the question is how well it worked out. There's no finite commodity to run out of, and nobody gets called a slut for jamming with too many musicians.

UCLAbodyimage: "Or is it that there are some areas that are truly to confusing to people..."

What's confusing about not having sex unless you get an enthusiastic yes?

(I guess this is as good a time as any to mention that I'm actually working on an anthology with the fabulous Jaclyn Friedman about this very subject, tentatively titled "Yes Means Yes.")

Sailorman, you'll note that the portion you quoted is not the portion I bolded as being relevent to the conversation. Nice try at a red herring, but I'm not buying. Each law I quoted had an area, which I noted quite clearly, where it spoke of unsoundness of mind or some phrase with the same meaning. Anyone with a brain can see that those too drunk to consent are, indeed, unsound of mind. Hence my using that post to disprove the claim that no rape law includes that. The area you quoted was a separate point within the law, no doubt referring to drugging the victim.

And I whole-heartedly agree with those posters who've stated that the legal minimum should have nothing to do with it.

JESSICA: "What's confusing about not having sex unless you get an enthusiastic yes?"

Because an enthusiastic yes doesn't always mean yes.

For example, I'm assuming we both agree that if a woman who is extremely drunk enthusiastically says yes, that it would still be rape if a man had sex with her. Yes?

What I'm confused about is how there can be any clear line where things automatically switch from sober and able to consent and drunk and unable to consent (i.e., 1 drink, 2,3,4,5 etc.). That is where the gray area seems to be to me, since different women likely have different ideas about when they feel able to consent vs. not.

How about two examples?

1) A woman says "If I get drunk tonight, I still really want to have sex with you". Later that evening, she gets drunk and enthusiastically wants to have sex with you. If you have sex with her, is that rape?

2) A woman says to you "I've had three drinks and I'm a little buzzed, but I really really want to have sex with you." If you have sex with her, is that rape?

Those are the areas that seem gray to me.

JESSICA: "(I guess this is as good a time as any to mention that I'm actually working on an anthology with the fabulous Jaclyn Friedman about this very subject, tentatively titled "Yes Means Yes.")"

Sounds cool!

I'm actually really excited about the book project regarding double standards that you mentioned. I really think that could be a very important contribution - really hit people over the head all at once. It's certainly something I would use in my classes!

I've been on the sidelines here as a reader for some time. I disagree with much that is written. I agree with much that is written. Sometime I take what is written very seriously, and sometimes I crack a smile. I don't know why. I just do.

But, today I have been prompted to comment on this subject.

Frankly, I too am tired of hearing about what a guy can get away with relative to sex and consent. It is a disturbing focus.

I've always been a firm believer in judging circumstances properly. I've also had my share to drink. In those instances, I'd rather not have crappy sex with someone I do not know. I'd rather not wake up with a headache in a strange place with an uncomfortable question to ask/answer. I'd rather not have a less-than enthusiastic partner. I just don't understand the point of troubling myself with these issues. I'm not a dog or some animal that cannot control and/or suppress instinct. Maybe that is why I have never personally been in this area of ambiguity. Perhaps I just have too much respect for myself. Perhaps I just like good sex.

In conjunction, there is a relatively simply rule to follow if you find yourself in such a situation. If you think there is a chance your partner isn't consenting, odds are, they probably aren't. If they aren't clamoring for you like you are for them, perhaps there is a conversation that needs to be had. But, simply being drunk is not an excuse to be an idiot. And, many of us are having this conversation sober. That is troubling.

I'm not perfect. But, let's stop the game of victim-blame and have men (and women) take responsibility for being clueless relative to sex. If we call it enthusiastic consent or whatever, the important point is that sex is a game played with partners--not one person taking something from another.

Thank you.

LOL

Ann herself expressed consternation about the situation in which the woman doesn't say "no". Is she an asshole too? Or am I the asshole for bringing it up? Or is asshole a term reserved solely for men?

Black and white. The world must be so clear to some people. How wonderful it must be to go through life not seeing gray.

ps is Thomas the Master Pickup Artist? Just wondering.

i feel like it's been said before, but i'll say it again. when feminists speak out against rape awareness, we are not talking about having sex with a guy one would not have sex with sober, we are talking about sex were one either said "no" or one was not conscious.

i have had the experience where i got really really drunk and enthusiastically had sex with someone i woke up next to and regretted it. that is not rape. i would never call it rape. that is not what this post is about.

the rape discussed here is either Moe's example of saying "no" and they guy still doing it, or the all-too-common example of a woman waking up to either see a man having sex with her, or feeling sore and showing the signs of intercourse. this is rape.

saying "yes" against better judgment= not rape
saying "no" or not being asked or not being conscious = rape

no one's trying to take away the fun of sexing girls when they are drunk and easy (sarcasm). we are trying to voice anger at a clear violation of women's bodies.

When I was 16, I was at a science fiction convention in a large hotel. At the Saturday night dance, an older man (who knew my age and knew that I'd never had alcohol before) kept bringing me little paper cups of "kool-aid."

I kept telling him that it made me feel funny and that I didn't like it, and he kept telling me to drink more, faster.

That's the last thing I remember.

I was VERY lucky.

I woke up the next morning, fully-dressed, in the bed of a man I'd never met.

The man was asleep, fully-dressed, on the floor.

He told me that he'd seen me leaning against the wall, unconscious, being held upright by man #1. He didn't know the circumstances, but chose to intervene. When he realized that I was too incapacitated to even say my name, he took me back to his room so that I could sleep it off.

Luckily, he was a 6'5" Marine, so he did not need to use physical force to "rescue" me.

I'm now 33, and we are still good friends.

Was I raped? No.

Was that man a rapist? Clearly, yes.

Morgan, that's not really true. Because there's no debate about those things.

I doubt there is anyone here who thinks that having sex over someone's protestations ISN'T rape (anyone?) or that having sex with an unconscious person ISN'T rape (anyone?)

The obvious cases are just that--obvious. We all tend to discuss things that are actually, in theory, debatable.

Kimmy,
I was explaining, not justifying. (If you had read that legal analysis post I mentioned, you'd see it's a "why this law sucks and doesn't cover all rape" post, and not a "why rape is OK if it's not illegal" post.) Just FYI; I can see how it wasn't obvious from my reply.

That said, it is not "obvious to anyone with a brain" that drunkenness is equivalent to being mentally unsound. Especially in the legal context. As I've said many times, legalities don't match real life, and just because something is legal doesn't make it good, or even non-reprehensible.

So talking about what is legal is only vaguely related to what is morally correct. And talking about what is morally correct is only vaguely related to what is legal.

[shrug] I'm fairly supportive of your general point, but if you're going to post legal statutes, don't get pissed if you get legal responses.

Anyway.

There are some people here who seem to think that only a vigorous "yes!" is full consent; anything else is rape. Good on you--that's the ideal situation, obviously--though if you think there aren't exceptions to that as well, you're being deliberately blind, or a big fan of the One True Scotsman.

And of course, there's the reality of right now: many men AND many women make all sorts of sexual advances and have all sorts of sex without asking for, offering, or receiving a semaphore-clear
"yes."

It's one thing to suggest that those encounters are less than ideal (I agree; the human race would greatly benefit from better communication across the board.) It's another thing to suggest that those encounters are all rape.

SOME of them are rape, of course. But not all, or even most.

I too, am a sideline reader, as I have never commented on a blog here. But some of the comments people have made are just disgusting.

I myself was date raped last summer. Was I drunk? Yes. So then, some of you may ask, can I call it rape? Well, let's see...I would the answer is unquestionably yes.

I was drunk by own free will and ran into a "friend" I'd know for years at a club. He recognized my drunkenness, and while he had had a few drinks as well, he was sober enough to know to hail me a cab, tell me I was too drunk because I was throwing up and at times passed out in the cab (it was a long ride), remember his friends address, get me to the friends house, and tell the friend I was drunk.

What happened next is all bits and pieces. I got to the friend's house and remember wanting to take a shower. That is all I remember other than a few things he did to me (again, bits and pieces). But it was all so slow. I could barely move, let alone talk. It was as if the world was in slow motion and my own body could not defend itself. I know I never said yes, because I could also not say no. But based on my condition, and on the fact that he knew me for years and that I would NEVER consent to sex with him, what he did was rape. Plain and simple.

I woke up the next day, naked on some dude's couch, with his friend saying "You know it was wasn't me, right?" and "I wondered why he told me not to go into the living room".

So to Alaric and all the other jerks who say if I drank of my own free will then I can't call it rape, I will also give you a resounding fuck you. To say that my experience was deserved or somehow, my own fault, is insensitive and unforgivable.

Have I learned my experience about drinking? Yes- unfortunately, I know that although I have every right to get piss ass drunk, I need to be more careful because of all the untrustworthy people around me.

But does that make what happened to me OK or somehow not his fault? NO. It was wrong. It was rape. End of story.

Sailorman, you're obfuscating. There is a point (many people here have posted their own stories of passing that point) where drunkenness makes you unsound of mind. If you're arguing that fact, you're really unaware of what happens when you get totally smashed. You don't have to be unconscious to have reached that point (although if you keep drinking much past it you probably will be).

Is a woman who is so drunk she will follow where you lead without question or understanding (probably with substantial help from you to keep from falling over) unsound of mind? Damned straight.

Is a woman who is so drunk she cannot speak unsound of mind? Damned straight.

Is a woman who is so drunk that she cannot comprehend who she's with or what's going on around her unsound of mind? Damned straight.

Is a woman who cannot walk unassisted and is not in full control of her motions unsound of mind? Damned straight.

Is a woman who's had a cocktail or two and is feeling quite cheerful unsound of mind? No.

See how easy this is? I'll repeat what so many others have said. Not raping a woman is not a difficult task. Make the choice yourself (universal "you") to never have sex unless the woman is fully aware, fully participating, and absolutely consenting. If you're unsure on any of those points, you don't have sex.

It's not nearly as hard as folks want to make it out to be.

And bag the "you asked for the legal side" stuff. The poster said there were no laws. I showed that there were. Thus ends my interest in the exact wording of the laws. Your mentioning areas of the law that do not pertain to that transaction is irrelevent and pointless to the discussion at hand.

no one's trying to take away the fun of sexing girls when they are drunk and easy (sarcasm).

I suspect that's what most of the protesting is about.

Sarah, I'll call your "suspect" and raise you a "know." For a lot of men, that's exactly what this discussion is about. You start talking "unable to consent" and they panic. "I can't fuck her when she's too drunk to stop me or talk to me? Shit, how'm I gonna get laid now?"

Taina: Thanks for sharing your story. I'm sorry you were put through that. Obviously you already know this, but your rapist's friend is almost as disgusting as your rapist.

UCLA, you've asked your question ten times, earnestly and in the spirit of honest clarification, but I'm pretty sure nobody is going to give you an answer precisely the way you want it (number of drinks, BAL, mini-mental status examination score of >24, etc). I had the same question at first, but I think Jessica's response ACTUALLY answers your question, though not as quantitatively as you might like.

"What's confusing about not having sex unless you get an enthusiastic yes?"

If I interpret Jessica correctly, I think what she's saying is, no matter how many drinks a woman has had, if she actively participates back, then she's able to consent. If she doesn't seem to be actively participating up to that point, then it's time to stop. At that point, the worst case scenario is you wake up the next morning and find out that she really did want you to continue, and you misjudged her lack of participation. Never fear, since you weren't an asshole, your sex life isn't over! I doubt a woman has ever dumped a man because he wanted to make sure he wasn't raping her. It's win-win for everybody. She doesn't get raped, and he isn't a rapist.

When this thread started, I thought back to an incident in college when I was at home studying, and my now-wife-then-fiancee was out drinking with some friends. She called me to come visit, and I found her in her dormroom with a bunch of friends, trashed out of her mind. She absolutely attacked me with about six other people in the room. I stopped her, since, well, there WERE other people in the room, but I think that's a nice example here. She was seriously trashed. She was CLEARLY able to enthusiastically consent, and even initiate. When I first started reading this thread, I mistakenly thought that incident would be considered rape (had it proceeded) by some people on this board. But the "enthusiastic yes" criteria is ACTUALLY useful (though it took me sometime to figure out how).

If a man can't tell if a woman is "enthusiastically consenting," it can only be for one of two reasons. A) She's unable to give consent, and thus ISN'T consenting or B) she's shy, even when drunk. On the one in a hundred chance that B) is correct, you can work that out on the next date.

So, sex with a drunk woman isn't rape. Sex with a woman who can't consent, for any reason, including being drunk, is rape. If she's drunk and able to give consent, then her ability to consent trumps being drunk. If there's ANY QUESTION WHATSOEVER (this gray area we might speak of), it's time to call it a night and talk about it over waffles the next morning.

Pup, you win.

Woo-hoo! SOMEBODY GETS IT! So nice to see that we are, in fact, speaking English when we say these things. I was starting to wonder if it was a different language and I just hadn't noticed.

Ron O. That kind of situation is actually what I am more concerned about lately. Not so much from a legal stand point, as a moral one. That "obligated yes" that our society drums into so many women. (And sometimes men - I know men who are so bound into the "Guys must always want it" that they have sex when they'd rather not.)

I also believe in the "enthusastic yes" and try very hard to make it the standard for what I do. But this leaves me in a weird situation sometimes when I hear stories of my friends' sex lives.

I don't know what to make of the woman who always speaks of intercourse like it bores her and she views it with distaste (she even tends to switch into passive voice when discussing it). She's an enthusiastic kisser and snogger, and she cares for these men and dates them, but describes sex as "eventually the boy has needs so he drags my hand down below the belt and then that's the sign that we have to move on" from the snogging she enjoys so much.

I don't know what to make of that. I mostly think it is appalling, and that it is a complete lack of interest in her needs or desires by her lovers. At the same time, I don't think I can consider it rape - although it doesn't meet my standard of enthusiastic consent. It's tolerating something, enduring it, not desiring it. So what does one call that? Morally? (Legally I am hard pressed to make a case for rape here.)

kimmy/sarahmc:

exactly-if a guy has to protest his right to "grey" rape, then he probably doesn't see a lot of consenting options. ew. just reminds of that 90s song "if it wasn't for date rape i'd never get laid".

LC, morally I think the guy(s) your friend sleeps with is inconsiderate, but not a rapist (judging from your account alone). To be that unaware of your partner's emotional and physical reactions to sex is... cold and selfish.
Do you know if your friend's been sexually abused in the past or something? Sounds like she has some of her own issues - if she feels obligated to have sex with people when she doesn't want to and whatnot. Or maybe he's not "doing it right" and she's literally not getting anything out of it.

First off, LC, you might try telling your friend that she's not obligated to have sex with anyone if she doesn't want to. She obviously needs some help to internalize that, if she thinks that's the way she has to behave. Also, she might try dating men who can tell (and care) whether she actually wants to have sex or not. Men who don't care about that are assholes.

She consents to the sex, so (absent any force or coercion), it's not rape. Just a really bad idea. Of course, there's the question of how free her choice really is if she honestly believes that she hasn't got one. But I'm not sure we can blame that on the men in question. Just their general assholery for not caring about her in the first place.

SarahMC: No problem in sharing. Just had to try to make some sense of it all.

And yes, he is just as disgusting.

Kimmy -- I am not really sure the Oklahoma law on "unsoundness of mind" has anything to do with intoxication; I think they're talking about mental illness. Also, note that New York law says that

"Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

So if someone is so drunk, or otherwise mentally incapacitated that they can't speak or don't know what is going on (and that's clear to the other person), then, yes, that does seem like illegal conduct to me.

But just because someone is too drunk to "walk unassisted" or not in full control of his or her motions -- that clearly wouldn't meet the New York definition of rape, or the D.C. definition.

And yes, SarahMC, if someone has sex with someone who is passed out in a gutter, yeah, that is (or should be) criminal conduct.

What I object to, and what I think most men object to, is the notion that a woman can decide the next day, "oh, I had too many shots of Jagermeister, I really shouldn't have invited James home and told him I wanted to f-- him, it was 'grey rape'!" (or just rape). No, that is regretful sex.

UCLAbodyimage - you're confusing a civil case and a criminal case. You might be able to invalidate a contract (possibly), but taking a drunk person's deed isn't a criminal act.

Seriously, nearly every state law is online, find me one where there would be criminal penalties assessed in that situation where you describe.

Further, you're trying to draw a disctinction between "drunk" and "staggeringly drunk." But that's not really a distinction that can be made in any articulable legal sense.

Alaric, I'll quote it again, since you couldn't read it the first time:

2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

You can see here quite clearly that it lists mental illness separately from the other possible causes of unsoundness of mind. Being too drunk to consent is definitely a temporary unsoundness of mind.

And yes, drawing distinctions between different areas of drunk is perfectly acceptable. A woman who's had enough to make her laugh too loudly at everything is not the same as a woman who's had enough to make her unable to consent (she's unaware of her surroundings/she can't stand up on her own/she can't speak or form a coherent sentence/etc. etc. etc.). Not difficult at all, really.

What I object to, and what I think most men object to, is the notion that a woman can decide the next day, "oh, I had too many shots of Jagermeister, I really shouldn't have invited James home and told him I wanted to f-- him, it was 'grey rape'!" (or just rape). No, that is regretful sex.

Why don't you fucking POINT ME towards whomever said that - in here or on Jezebel. Because Jesus, if I'd known you were going to be so willfully ignorant I wouldn't have repeated, so many times, that regretful sex IS NOT RAPE. Nothing anyone in here has said implies such a thing, or implies that regretful sex SHOULD be classified as rape. Apparently you only have sex with strawwomen.
Read what Pup, MD just wrote, you numbskull.

And yes, my examples of a person is is unsound of mind clearly meets the DC standard as listed. It also meets the New York standard in most cases (I suppose it's possible that a woman who is so drunk she can't walk or control her motions might be able to " communicate unwillingness to an act" appropriately, but it's just as likely if not more so that she wouldn't).

Kimmy, if you're really interested in what Oklahoma means by "unsoundness of mind", read this. They're clearly talking about women who would be called "feebleminded" or "lunatics" in another era. Not women who have had one too many cocktails.

I'd take that page with a grain of salt if I were you, alaric. They're only talking about things that have been used in the past to determine such, not everything that might ever be. Also, evidence of an unsound mind is listed to include: "(3) evidence which shows the victim does not feel guilty about having sex." So, you know, if you're going to take that page as rock-solid, you'd best hope that you never have a sex partner in Oklahoma who doesn't feel guilty afterwards.

Also important is that the law as it currently exists uses the term "temporary." I've never met anyone who was "feebleminded" when it was temporary, unless there was the presence of drugs or alcohol in their system.

Now, can you just accept that you were wrong and we can all move on to the many other things you've been wrong about?

Kimmy, I've been so drunk drunk many times I had trouble walking straight ... that doesn't mean I couldn't talk, couldn't say "no," or wasn't aware of my surroundings.

SarahMC - Yeah, everyone says they don't mean that "regretful sex" is rape. Then they say that if a women was drunk, it could be rape. But not if she was just sorta drunk, only if she was really, really drunk. That's not really an articulable legal standard, although I would agree that someone unaware of what is happening to them can't consent to it.

Someone mentioned "Superbad" before, and the Evan& Becca bedroom scene. Becca is falling-down drunk, but at the same time sexually aggressive with Evan. In the movie he refuses to have sex with her - but can we at least all agree that if he did, his conduct wouldn't be criminal?

I guess the bottom line some of us are trying to get to is the following:

Everyone's experiences are different. If someone isn't "walking straight" then obviously they are somewhat drunk and mentally impaired at that moment. Meaning that they might, or might not, be able to give consent. Whether or not they can consent is clearly subjective. What you might/might not be able to do in that situation might not be what that person is able to do.

Also, why risk it? Why risk making that person feel like crap the next day? Why risk being accused of rape? Why not just call it a night?

Legalities aside, don't act without knowing 100% that the other person is fully consenting. If this means you don't get any that night, too bad. Zip it up, go home, and avoid a bad situation altogether.

SarahMC: Yeah, I don't think they have been/are rapists either. But it still makes me uncomfortable. The thing is, she is highly sexual in some ways, it is only this weird passivity around intercourse that seems to be the issue. As for cold and selfish - both men I am thinking of are strongly identified as tops and part of me wonders if that sense of "it doesn't have to be about her needs" has to do with that aspect of it. (As well as her own sense of getting something out of the interaction despite that act being of little interest.)

I have no reason to think her sexually abused except that reaction pattern - and while it is somewhat classic I know very well it is not a 1:1 correspondence.

She obviously does have her own issues with how she phrases consent. (She's admitted she is not good at saying no, or at directly asking for her own desires.)

Kimmy: I have told her she doesn't have to have sex with anyone in any way she doesn't want to. I think I threw a minor fit when I heard her use the word "necessary" to describe what boys need sexually.

She obviously needs some help to internalize that

Yeah. I tend to agree. The thing is, she speaks of these encounters as very hot and of as being good sex, it is only when any detail comes out that this weird shift in description happens. She seems highly sexual and all about certain boys and girls - but with this sense of feeling bad that she's enjoyed the making out and the poor boy is frustrated so she better take care of him.

She consents to the sex, so (absent any force or coercion), it's not rape.

I think part of my issue is that it does smack to me of coercion. The "he moves my hand down there which I would never do if I just got to play on my own" side of it just... rubs me the wrong way.

I guess for me I am struggling with whether this is broccoli or tofu for her, to use an analogy that may have come from another blog.
(One being something you
would never go out of your way for but don't mind and even enjoy when it is well prepared for you, and the other being something you just really dislike.)

Just a really bad idea. Of course, there's the question of how free her choice really is if she honestly believes that she hasn't got one. But I'm not sure we can blame that on the men in question. Just their general assholery for not caring about her in the first place.

Whoops. Forgot to clip that last bit of your post. Sorry.

And one last comment before I sign off for the day; I like the advice given on the following site. (Granted, it is written for a teen audience but wouldn't it be nice if adults played by the same rules?)

Oh and it is written by a man. =)

http://teenadvice.about.com/od/daterape/a/daterapeguysfyi_2.htm

I tried to do a little more research on this matter, but could find very little cases being brought in the U.S. about it. Which I think indicates few prosecutions.

I did find this interesting UK case, tho.

Taina, I think we should all be able to agree it is a bad idea to have sex with really drunken people, and a bad idea to get so drunk you aren't in control of yourself.

This goes back a bit, but Kimmy, you know it wasn't my intent to minimize your experience. I'm only trying to have a conversation and understand the situation. The implication wasn't supposed be that someone I'm personally in charge of deciding how your experience stacks up on the universal scale of trauma. Nor did I, at any point, imply that such a situation was within light years of being acceptable, and I think I made that very clear. But the unfortunate truth is, in the real world, that IS someone's job. That's why not all crimes carry the same penalty. It's a good thing they don't.

er somehow.

Anyways, for the rape-is-rape-is-rape-is-rape people, I think the burden is on them to explain what makes rape different than every other conceivable crime. Why are there different degrees of robbery, assault, fraud, etc, etc... but not rape?

"What I'm confused about is how there can be any clear line where things automatically switch from sober and able to consent and drunk and unable to consent (i.e., 1 drink, 2,3,4,5 etc.). That is where the gray area seems to be to me, since different women likely have different ideas about when they feel able to consent vs. not."

I can only speak to my personal experience, but for better or for worse, I have quite a breadth of drunk-to-the-point-of-blacking-out sexual experiences. And despite extreme drunkenness, I was always able to refuse intercourse if I didn't want it. Lots of times, I wanted to do it, had sex, and didn't remember much the next day. (I have long since quit drinking.)

But there were many occasions on which I went home with a guy, didn't want to have sex, and made that abundantly clear despite being really, really, really super-drunk. When my memory came back to me of the night before (always takes awhile), I would clearly recall having refused intercourse, despite having been quite drunk.

My point here is that it's probably, for most women, not as much of a "gray area" as many men would like to think. If you have sex with a drunk woman who is really psyched to be having sex, that's one thing - not rape. But if she's drunk and not psyched, it's easy to tell! She won't be responsive. She won't be kissing you back. She won't say "yes!" when you ask if she wants to have sex. Etc.

By adding things like "how drunk is too drunk?" and "is 4 drinks too many for consent?", you're making a difficult question out of something that's generally easy to figure out.

The only reason to try to make that question more complex than it is, is to allow men this out: "how could I know if she was consenting or not? It's so confusing!" But it's not confusing. If you can't tell if someone wants to have sex with you or not, she probably doesn't.

Even if you're in a long-term relationship with someone, and you both get drunk and fool around, if you get to the point of intercourse and you can't tell if she wants to do it - though it's probable that she's okay with it given your relationship etc. - how about just don't? Wouldn't it be nicer sex if you could both enjoy it a lot? Just a thought.

Don't you think it's kind-of, kind-of patronizing to tell people in a relationship how they should have sex, apb3000?

I actually don't think it's that confusing either. I mean, it's not like you have sex with someone by bumping into them. "Ooops, we just had sex!" No, in general they need to be alone with you in a horizontal position with their clothes mostly off. (At least that is generally how I have sex - and in general, in my experience, taking off someone's clothes can become a bit of a project even with a willing partner).

I daresay that if a woman wants to get naked with someone and lounge on their bed but not have sex, it is her responsibility to say "no" not a guys responsibility to ask or judge how she's kissing.

Don't you think it's kind-of, kind-of patronizing to tell people in a relationship how they should have sex, apb3000?

I actually don't think it's that confusing either. I mean, it's not like you have sex with someone by bumping into them. "Ooops, we just had sex!" No, in general they need to be alone with you in a horizontal position with their clothes mostly off. (At least that is generally how I have sex - and in general, in my experience, taking off someone's clothes can become a bit of a project even with a willing partner).

I daresay that if a woman wants to get naked with someone and lounge on their bed but not have sex, it is her responsibility to say "no" not a guys responsibility to ask or judge how she's kissing.

"It really isn't complicated. If you have a question as to whether someone is capable of consenting, don't sleep with them. If you have a question as to whether someone has consented, don't sleep with them. If you have the slightest doubt that a person enthusiastically and totally wants to have sex with you right at that moment, don't sleep with them.

"Anything else is just trying to excuse rape."

Right on. I'm not impressed with excuses for rape, no matter if the rapist's apologists have a "big man on campus" attitude or a "revenge of the nerd" attitude.

"I also don't get how pausing for a few seconds before beginning, raising an eyebrow, and saying 'ready honey?' is unsexy. It's a simple courtesy. (It's also a good opportunity for some sexy talk if you are so inclined.)"

I totally agree. :)

"Rape has been a crime for ages and ages; it is one of the original felonies, all of which were punishable by death."

...except when the rapist paid a bride price, paid a slave's price tag, or was paid a dowry for the chance to rape the victim.

"What's confusing about not having sex unless you get an enthusiastic yes?"

I heard that some people out there don't fully understand that other people have minds too, and that unfortunately some of these folks think they're still entitled to sex with other people...

I daresay that if a woman wants to get naked with someone and lounge on their bed but not have sex, it is her responsibility to say "no" not a guys responsibility to ask or judge how she's kissing.

Naked in your bed =/ "please insert your penis into my vagina"

Here's a hint. If you're using a woman like a blow-up doll, you should probably be using a blow-up doll instead.

Here's a word for you, Pup: "No." Two letters, one syllable. Practice it! It ain't that hard to say!

I daresay that if a woman wants to get naked with someone and lounge on their bed but not have sex, it is her responsibility to say "no" not a guys responsibility to ask or judge how she's kissing. - alaric

Hmmmm....

...unfortunately some of these folks think they're still entitled to sex with other people...

Well said, Mina.

"I daresay that if a woman wants to get naked with someone and lounge on their bed but not have sex, it is her responsibility to say "no" not a guys responsibility to ask or judge how she's kissing."
It is both partners' responsibility to communicate about where they want the sexual activity to go. And my point above is that I suspect in the majority of cases, it is not difficult to tell whether a woman wants to have sex with a partner, even if they are both naked and lounging. If a man is uncertain, that is the time to ask. If the woman's answer is vague, incoherent, or there is no answer - the answer, then, is no.

By making it sound like the signs for "yes, sex" and the signs for "no sex" are subtle and easy to confuse, you're simply creating allowances for men to avoid accusations of rape by claiming to have missed these subtle differences.

But when we're talking about intoxicated women...well, not to put too fine a point on it, a drunk lady who wants to have sex is going to let you know, and she's not going to mince words. And if she doesn't want to, she'll likely tell you that, too. But if a woman is so intoxicated that she is passive, incoherent, and not engaged with what's going on, she is not a consenting partner. It's not a fine line or a subtle distinction. Trying to paint is as such is simply trying to make a way for rapists to get away with it on a technicality.

Naked in your bed =/ "please insert your penis into my vagina"

Not true. It means different things to different people.

By making it sound like the signs for "yes, sex" and the signs for "no sex" are subtle and easy to confuse, you're simply creating allowances for men to avoid accusations of rape by claiming to have missed these subtle differences.

I'm not saying that! You are the one who is trying to create confusion here. If someone says "no", that means no. No means no. It's very easy to say. Someone should not have to interpret someone's kissing style or how "passive" or "engaged" they are.

ed, I'm not sure if you were being sarcastic or what. Just to clarify, that was supposed to be a "does not equal."

For example, when my wife gets in bed naked, it means "the air conditioner isn't working, stay away from me, you furry ape."

And, Alaric, what about circumstances where a woman (or man) is too intoxicated to verbalise no?
This is what we're talking about.
You are coming off as a rape apologist. Seriously. By putting the onus back onto women to grant consent, rather than for men to seek it, it sounds like you are ok with men "getting away with" whatever they can. What a sad view of relationships between the sexes.
I'm not saying that to insult you, but to reflect back to you how the things you're saying sound to this 29-year-old woman.

PupM.D, ha ha! I have the same problem in summer with my darling. He's a real warm sleeper, and pretty furry to boot. (Yes, he is human. I just realised I seem to be describing a dog!)

alaric, if a woman is too intoxicated to say "no", that does not mean she wants to have sex.

"Yes" means "yes" - the absence of "no" does not mean "yes". If you ask a woman if she wants to have sex and she does not say "yes," even if she also does not say "no", she is saying no.

By putting the burden on the woman to say "no," you're making it possible for men who have sex with women who are too intoxicated to say "no" to get away with rape.

My point above is simply that it's usually easy to tell if a woman is drunkenly excited about having sex, vs. if she is simply too intoxicated to fight it off. We're talking an active sex-seeking partner vs. a passive body. By your logic, if the latter does not say "no," there is no reason for a man to think she doesn't want sex, even though she's giving no sign of wanting to have sex. That's ludicrous.

I guess I just find the whole thing so hard to comprehend, how anyone could want to actually have sex with someone who isn't in to it. The whole point of sex is that it's something you do WITH someone else, not TO someone else.
Sigh.

Exactly, anorak! That's what drives me crazy the most about the idea of men trying to justify sex with women too intoxicated to say "no" - imagining that they derive pleasure from what is a one-sided sex act. Ugh.

"it is her responsibility to say "no" not a guys responsibility to ask or judge how she's kissing"

Hah! So women's default position is "yes," then? You'll just go ahead and fuck whomever you please - if they can't say no that's not your problem? Whether it's because they're mute, or in a coma, or asleep, or because you've just duct taped their mouth shut...

anorak: To some extent, it depends on the circumstance.

But if a woman has gotten naked in a guy's bed, then yes, I do think it is her responsibility to communicate a lack of consent. That is what I think most state statutes say. E.g., New York's: "Lack of consent ... includes circumstances when the victim clearly expressed they did not consent to the act of
intercourse."

Saying I sound like a "rape apologist" begs the question. It isn't rape if a woman doesn't clearly communicate her lack of consent. (unless there is some other factor involved that makes it rape)

I guess if it sounds to you like I'm ok "with men 'getting away with' whatever they can, well, you are entitled to your opinion. As I said above, I think ethical people go beyond the legal minimum. But to me the real question is, when should men go to prison for 10 years or so?

Alaric, you've got it the wrong way round. It IS rape UNLESS there is consent.
But a lack of not-consent doesn't automatically make it not-rape.
I just can't imagine going ahead with sex if there was even the smallest question in my mind that my partner wasn't in to it.

Maybe the rule should be: If in doubt, leave it out. (It even rhymes)

If someone is too drunk to speak, or to make a choice about what is going on, then yes that is criminal. Ditto about being asleep, in a coma, having their mouth duct-taped, etc.

But what about if they are just are a passive person who "(drunk or not) may not want to have sexual contact with someone, but also do not say 'no,' push back, or make any other outward indication that they are opposed." If the guy was a decent guy, he'd ask if he had any doubts, but he's CERTAINLY not a rapist in that scenario.

If someone "may not want to have sexual contact with someone", and sex occurs, the other person is a rapist. End of story.

I just can't imagine going ahead with sex if there was even the smallest question in my mind that my partner wasn't in to it.

Again: when you're talking about rape in a legal sense, the question isn't what is decent conduct, what is the best course of action, what is the most ethical thing to do.

The question is (as I see it), what should constitute conduct so criminal it's a felony generally considered second only to murder? When should someone be locked up for years and years and years?

" and I found her in her dormroom with a bunch of friends, trashed out of her mind. She absolutely attacked me with about six other people in the room. I stopped her, since, well, there WERE other people in the room, but I think that's a nice example here. She was seriously trashed. She was CLEARLY able to enthusiastically consent, and even initiate. When I first started reading this thread, I mistakenly thought that incident would be considered rape (had it proceeded) by some people on this board. But the "enthusiastic yes" criteria is ACTUALLY useful (though it took me sometime to figure out how)."

PUPMD, I appreciate your detailed response.

By my definition, that actually would be rape (unless a couple / people) had an agreement beforehand regarding what is and isn't okay when wasted. For example, if I was at a party and a) a random girl or b) a friend or c) a girl I had been dating for a short time was enthusiastically saying yes but seriously trashed, I definitely wouldn't feel comfortable at all. I would consider that assault if I were to have sex with someone in that state.

But that's my point - people have different ideas about when consent is and is not okay. Mine is apparently more conservative then some people's on the board, and more liberal than others. That's where I think the trouble can ensue.

I totally agree with (and have said myself) that when in doubt, don't have sex. But to me it's still an unclear situation when someone's buzzed and wants to have sex.

SarahMC"Pup, you win."

?

From wikipedia on U.S. sentences for convicted rapists "the average sentence for convicted rapists was 11.8 years, while the actual time served was 5.4 years."
So years and years and years? That'd be pretty damn rare.

Of course brutality and victim impact should be taken into account when punishing rapists.

I think taking one of the best things about being an adult human (wonderful sex!) and turning it into the complete opposite (rape and sexual assualt)should be harshly punished.
Does that answer your question?

AP3: "But there were many occasions on which I went home with a guy, didn't want to have sex, and made that abundantly clear despite being really, really, really super-drunk. When my memory came back to me of the night before (always takes awhile), I would clearly recall having refused intercourse, despite having been quite drunk.

My point here is that it's probably, for most women, not as much of a "gray area" as many men would like to think."

Your response makes sense to me. Perhaps the issue is that I've essentially never been drunk, so I don't have a good sense of what people can and can't determine at differing levels of alcohol. That might be a large portion of my confusion.

What?

AP3: "But there were many occasions on which I went home with a guy, didn't want to have sex, and made that abundantly clear despite being really, really, really super-drunk. When my memory came back to me of the night before (always takes awhile), I would clearly recall having refused intercourse, despite having been quite drunk.

My point here is that it's probably, for most women, not as much of a "gray area" as many men would like to think."

Your response makes sense to me. Perhaps the issue is that I've essentially never been drunk, so I don't have a good sense of what people can and can't determine at differing levels of alcohol. That might be a large portion of my confusion.

If someone "may not want to have sexual contact with someone", and sex occurs, the other person is a rapist.

Even if the woman never says no, never makes any other
outward indication that she is opposed, is stone-cold sober and completely conscious, and lying naked in a guy's bed? Yikes!

Lying naked in a guy's bed =/= ripe for the fucking. RECIPROCATING when you initiate is what you need to look for. I can't believe this discussion is even happening.

SarahMC - I know. *beats head on desk*

Alaric - One more time; two words - ENTHUSIASTIC CONSENT.

You're talking about criminalizing a misunderstanding! Believe me, you're not the only one who can't believe this discussion is happening. It's scary!

WHAT IS SO HARD ABOUT SAYING NO?

AND WHAT IS SO HARD ABOUT SAYING "ARE YOU REALLY INTO THIS?"?

(I too have Caps Lock!)

"AND WHAT IS SO HARD ABOUT SAYING 'ARE YOU REALLY INTO THIS?'?"

Saying that would involve caring what someone else thinks.

Some people have been raised with the "Don't care what anyone else thinks!!!" message repeated over and over again by "responsible adults" who are paranoid about peer pressure. Maybe some of them still take that message to heart even when they're horny...

UCLA, if your drunk girlfriend pushes you up against a wall and pulls your pants down to your ankles, you're not raping her. That's called "fun."

It shouldn't be that hard to ask, "are you really into this?" any more than it is to say "no," I'll agree with you there.

I would say that ethically, both parties have a responsibility to communicate. In cases where neither one does, it seems pretty outrageous to put the guy in prison - for a day or a year.

I think you're deeply infantalizing women here. I can see conversations under this proposed legal standard: "yes." "Was that an enthusiastic yes? A 'hell yes'?" Ugh.

QUOTE: But with this 'gray' rape malarkey, the emphasis is entirely on the victim's end of things. Did she know him, did she have too much to drink, did she consent to making out but nothing further?

QUOTE: Dinogirl, this is exactly what I keep coming back to anytime the subject of "gray rape" is brought up.

Our social definitions place the emphasis of rape on the victim, and we tend to ignore the fact that there was a person who willfully did the raping. Hence society's desire to seek out what the victim did "wrong," and why these victims of "gray rape" want to define their experience as less than.

I think the problem with the emphasis on the victim is that unfortunately we're talking about a crime that isn't a crime when the victim consents to the act. Therefore doesn't that mean that determining if a crime has been committed rest on determining if consent was enthusiastically provided?
Wouldn't that (however unfairly) then mean that the existence of a crime rests on determining if consent was or was not provided by the victim?

I don't think the comparison to murder is valid because someone consenting to be killed by their murderer is still (almost always) a crime.

I imagine the whole reason everyone is arguing at all is precisely because we're dealing with (very unfortunately) a crime in which there is no crime if only both parties are willfully consenting to partake in the act. The end result is that determining if a crime took place is all about determining if consent was supplied by both parties involved.

I understand how that can easily begin to look like "blaming the victim" in many cases - and that definitely sucks and is completely unfair - but we're dealing with a crime that completely pivots on the supplying of consent by the victim, and the attacker understanding the consent or lack of, right?

Based on that I can at least on some level understand the points trying to be made regarding "gray rape", but I also can understand how to the victim consent seems like a very black and white line. Clearly saying no always, without exception, means no. Or rather more importantly - the lack of saying "yes" always means "not yes" - since lack of consent is the definition of rape. It's true, though, that communication between two people isn't always that black and white.

Does that mean that a man should feel fine proceeding with an act that doesn't have full and complete consent? Of course not! But are we really saying that someone who proceeds to have sex with a woman who isn't clearly saying yes deserving of the same punishment as someone who proceeds even in the face of a clear no?

There's no doubt both crimes are rape - they are the act of sex conducted without clear consent - but isn't there a different between lack of consent and a clear negative consent?

Seems to me that this concept of "enthusiastic consent" is the way to go simply based on the fact that we're talking about a very serious crime that hinges completely on the ability of two adults to clearly and unequivocally communicate to each other their consent.

Tendimensions - I like the clarity of your points.

I disagree that there should be a perceived difference in the two scenarios you suggest, because I don't think ignorance should be an alibi.

The default setting should be seen as "no', until verified otherwise.

Twisty has a great thread on this.

Besides, what is more erotic than someone saying they really really want to get down with you?

Alaric (and to a lesser extent, TenDimensions): YES. It is still rape. There are plenty of reasons a woman may not be able to say no, some may be physical, some may be psychological, but none of them need to be justified to you. How many people on this thread have said over and over that most women do not enter into a vicious struggle when raped, but freeze? This is what happened to me! I didn't say no b/c I was in shock at what was happening to me. I thought that scooting away or turning over was enough, but was apparently too subtle. Or that's what I've been telling myself. The truth is, he should have known. I believe that he did and didn't care. It wasn't until several minutes later that I pushed him away from me. It was still rape. It doesn't matter if it lasts an hour or thirty seconds. It doesn't matter if she doesn't fight. It only matters that she didn't say yes, enthusiastically and didn't engage. It is rape. And does the fact that I wasn't roofied by a stranger make it any less traumatic that my trust was violated by someone I loved? NO. SO FUCK YOU.

You, Alaric, don't "come off" as a rape apologist. YOU ARE ONE. I don't believe for a second that the men who claim they didn't know, really didn't know. They knew. And it doesn't matter if their consciences were nagging at them the whole time, or if they felt bad about it later, or if in hindsight they can see what really happened. At that time, they did it anyway. And all they had to do was choose not to rape.

kissmypineapple - thanks for sharing your (awful)story.
I guess I've been trying to bring these guys around with a softly-softly approach.
Your words have a power and an anger that is needed here.
Thanks again.

Again: when you're talking about rape in a legal sense, the question isn't what is decent conduct, what is the best course of action, what is the most ethical thing to do.

Except that a lot of the posters *aren't* talking about rape in a legal sense, but rather that ethical sense, and you keep trying to steer the conversation back to "under the law, what can I get away with"?

Acting like the ethical considerations are of lesser importance *is* being a rape apologist.

you keep trying to steer the conversation back to "under the law, what can I get away with"?

Exactly. That's what's so upsetting. Because he's not saying, "How can I be sure not to pressure, coerce or force a woman to have sex," but "How can I avoid being charged with rape?"

Some of the posters here have effectively pointed out that rape, legally and "ethically", is determined from the consenter's point of view. This is a major feminist issue, especially in societies that teach women that they should be the "hunted" protectors of their "virtue".

As a guy with fairly strong feminist principals, it always bothers me that many women believe it is unattractive or low-class to enthusiastically participate. (I don't think anyone believes it is "low-class" to say "no". But, this discussion is really about when a women doesn't clearly say "yes".) But, such mindsets are much larger than me, or the sum of the posters on this site. In the past, I've resorted to asking girlfriends to confirm that they really were interested in getting it on, and usually was reminded that they were, and find it more exciting to be "taken" rather than asked at every step along the way. This really bothered me sometimes.

I am now married, and love the fact that my ivy-league wife can be open about her interests, but she resorts to the "rules" too. She is convinced that a man will lose long-term interest in a women who acts in a way that isn't, well, virginal. Maybe she, and almost every women's magazine around, is onto something. And, looking at my own decisions, I married a women that can certainly show her romantic interest, but usually assumes the persona of a chaste dame when intimacy is involved.

And, if/when I have a daughter, I have no idea what to say to her about this. Should I tell her to always speak frankly about her wishes, even though that would probably give off the impression that she's, well, been around? (I am only referring to positive wishes. A desire to not go further should obviously never be withheld.) As my wife's daughter, she'll probably pick up on my wife's upper middle class attitudes about what men value in the long-term. And, in doing so, play a role in perpetuating gender dynamics that give creeps (a few of which showed up for this discussion) a basis on which to blurr distinctions between when one is consenting and when one isn't. All I mean by this is that this issue would be moot in a society where women could easily vocalize interest in intimacy without lowering their "value".

Except that a lot of the posters *aren't* talking about rape in a legal sense, but rather that ethical sense, and you keep trying to steer the conversation back to "under the law, what can I get away with"?

Well, maybe I missed that distinction Jeff. Maybe to avoid confusion there should be a different term to distinguish between rape in a legal sense and rape in an ethical sense. Like ... "gray rape?"

SarahMC - nope, you still don't get it. I do ask, unless someone's completely reciprocating. I have turned down girls who are drunk, not because they are falling-down drunk but because they are drunk enough that that they'd regret it the next day. I remember in college, one drunk girl in the campus bar who was practically begging me to take her back to her dorm room, but I refused.

Not that I expect a medal for this behavior, or anything; I'm just pointing out that you're wrong that this is in any way about me.

kissmypineapple - Y'know this guy sounds like a real jackass. But do you honestly believe he belongs in prison?

You say he "should" have known. And you "believe" he did. And yet -- how can you be sure? Particularly it seems like when you did indicate you weren't into it, he stopped? Maybe he "should" have known, but is just an insensitive prick and didn't? Would you be willing to put him in prison for that? For your own passivity?

Alaric, you are a fucking asshole. The man who raped Kissmypineapple wouldn't be going to jail for her passivity. He'd be going to jail for committing rape. She is not responsible for his actions. No woman is responsible for the actions of another person, and especially cannot be held responsible for the actions of a man who chooses to commit rape. It may be no big deal to you, but it's a pretty big fucking deal to us. Does a man who committs rape deserve jail? Hell fucking yes. Even if he didn't beat you, or tie you up, or threaten your life? Hell fucking yes. You know why? Because rape is a fucking brutal crime no matter how it occurs, and brutal criminals deserve to be punished.

How DARE you try to suggest that she's responsible for what happened to her? And don't even try to back-pedal and say you didn't say that, because you clearly did. We're not as stupid as you seem to wish we were.

"Taina, I think we should all be able to agree it is a bad idea to have sex with really drunken people, and a bad idea to get so drunk you aren't in control of yourself."

Well I fully agree with that point. BUT, even if you do get so drunk that you can't control yourself, it doesn't excuse someone from raping you.

Well, maybe I missed that distinction Jeff. Maybe to avoid confusion there should be a different term to distinguish between rape in a legal sense and rape in an ethical sense. Like ... "gray rape?"

Personally, I tend to use "legal rape" and "moral rape" to distinguish, but if I'm just talking about "rape," I generally mean the moral definition, because what I'm concerned with is stopping the act, not in the number of convictions.

And even if you do turn down people who aren't fully consenting, you seem to be actively against those who call out that behavior, bringing up largely irrelevant criminal justice issues to deflect criticism of the behavior, yours or not.

Alaric,
kissmypineapple said she didn't consent. A jury that believed her 100% probably couldn't prosecuted the guy because her actions will leave reasonable doubt regarding whether she consented. Scooting away could be evidence of non-consent, but turning over is definitely open to interpretation. As much as it hurts victims to hear this, the law only admits testimony as evidence. The court (judge or jury) is the fact finder. A court would have to determine that kissmypineapple didn't consent, and I wouldn't bet money on that outcome, even with (or should I say especially with) the most liberal box of jurors.

As far the guy, he proceeded even though she didn't consent. It's been a while since my crim law class, but this guy seems like a good candidate for an attempted rape prosecution. His actions indicated clear disregard for kissmypineapple's consent or lack thereof. His lawyer would argue that it is a legal impossibility to attempt to rape a person who may have been consenting. (Now I am definitely having 1L flashbacks.)

You say he "should" have known. And you "believe" he did. And yet -- how can you be sure? Particularly it seems like when you did indicate you weren't into it, he stopped? Maybe he "should" have known, but is just an insensitive prick and didn't? Would you be willing to put him in prison for that? For your own passivity?

"He should have known" does not mean "he should have been able to deduce from her body language or from 'signals' that she wasn't into it." It means that "he should have taken whatever actions were necessary to positively confirm that she wanted to have sex."

If you want to drag it back into legalistic terms, it's "constructive knowledge" versus "actual knowledge." You shouldn't get to use "I didn't know" as an excuse if you didn't even bother asking.

PUPMD: "UCLA, if your drunk girlfriend pushes you up against a wall and pulls your pants down to your ankles, you're not raping her. That's called "fun."

Is that different from what i said? I purposely excluded long-term gfs because by that point you both have a good understanding of what the other one likes, what they're comfortable with, etc. See the () in the first line.

What I said was:

By my definition, that actually would be rape (unless a couple / people) had an agreement beforehand regarding what is and isn't okay when wasted. For example, if I was at a party and a) a random girl or b) a friend or c) a girl I had been dating for a short time was enthusiastically saying yes but seriously trashed, I definitely wouldn't feel comfortable at all. I would consider that assault if I were to have sex with someone in that state.

But that's my point - people have different ideas about when consent is and is not okay. Mine is apparently more conservative then some people's on the board, and more liberal than others. That's where I think the trouble can ensue.

Kimmy, if she was actually raped, then she's not responsible for it. But if she gave a guy "mixed signals" or didn't clearly communicate her lack of consent, then it wasn't rape. Given that she even admits herself that she may have been "too subtle," it seems v. possible she wasn't being clear.

Jeff - I guess I think that morally, communication is a shared responsibility. Using a term like "moral rape" when it doesn't fit the legal definition strikes me as a cop-out. Under New York law, the relevant legal definition is when "the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances." That shouldn't actually be that hard to communicate.

LC - that line about the men moving her hand had me disturbed too. The word that sprang to my mind was sleazy.

It seems like some posters are looking for specifics of how to avoid being falsely accused of rape while still getting laid. You can't. There is no perfect way to avoid being accused of any crime, though it is vary rare if you are not actually a criminal. As many posters have pointed out, acting ethically and communicating clearly will go a long way towards reducing risk. And…

[Feminism is good for men too! in 5, 4,...]

Practicing enthusiastic consent is good for your emotional and physical health, guys. Have you ever started fooling around with someone only to discover you really don’t want to have sex with them? What did you do about it? Ever have sex you regret? Had really bad, drunken sex? Doesn't it suck? I’ve had naked, drunk women in my bed too and it absolutely does not equal consent for intercourse. (Besides, some really great sex I’ve had did not involve intercourse) As Pup, Md advised way earlier, talk about it over waffles the next morning if it is a relationship you want to continue. If it’s not, be happy with the memory of good, harmless fun (or disaster averted). May the next one turn out better. It really isn’t that difficult to minimize the risk of being accused of rape. If you think signals are mixed ask for clarification dummy. If it is still unclear go home and masturbate.

Sorry to make this about the men. I appreciate all the women on this board and jezebel who have shared their stories and tried to knock some sense into a few heads.

Jeff - I guess I think that morally, communication is a shared responsibility.

Yep, it is. Because if a potential partner and I want to have sex with each other, but one of us is unable to communicate it, neither of us gets laid.

Using a term like "moral rape" when it doesn't fit the legal definition strikes me as a cop-out.

I don't think so. The cop-out is using "it doesn't fit the legal definition" to excuse behavior.

Here's a thought experiment: suppose you were in a jurisdiction where there were no laws (or at least no laws against rape). Does that mean nobody there can be raped? Excellent, problem solved, and we can all go home.

What if it's just certain types of rape? Did marital rape not exist before those laws were passed?

How about if a law gets passed requiring notarized permission slips prior to sex or rape charges can be brought? Is someone who doesn't get their papers stamped now a rapist?

Jeff, I don't think I'm excusing anything. I just think there's a difference between being a jackass, and being a rapist. Just because the law says X, okay, that doesn't mean the law is perfect, I'll grant you that. But what the law says in this case makes sense to me.

Speaking of notarized permission slips -- I guess most people here think it's the guy's duty to get verbal permission every time a sex act is initiated. But why make a "special case" out of sex? If that's the rule, shouldn't it be the rule for *all* sexual activity, a la that Antioch College code mocked by Saturday Night Live? In your ideal world, guys should have to ask "can I kiss you, can I touch you here, can i insert x into y" -- and if they don't, and if the woman doesn't like it but gives no outward sign, then they could be prosecuted for a sex crime, right?

But what the law says in this case makes sense to me.

Okay, fine. But the argument there is that it makes sense to you, not that it's the law.

In your ideal world, guys should have to ask "can I kiss you, can I touch you here, can i insert x into y" -- and if they don't, and if the woman doesn't like it but gives no outward sign, then they could be prosecuted for a sex crime, right?

This is what I tend to refer to as the "Antioch Fallacy," because it comes into every single discussion of consent ever. "Can I insert x into y" just means you suck at talking dirty.

Let me help you out here, Alaric.

Some examples (those who dislike dirty language should turn away):

Call: I really want to eat you out.
Response: Oh, yes

Call: Do you want to suck my cock?
Response: Ooh, baby, yeah

Call: Are you ready for me to fuck you now?
Response: Yeah, baby, right now!

See how easy that is? And it's fun, too!!

But the argument there is that it makes sense to you, not that it's the law.

Well, the argument is both that it makes sense to me, and that it's the law. And that no one here has offered a good explanation of why the law should be changed.

And talking dirty is fine if that's your thing. Talk dirty all you want. But personally, I'm not so much into talking dirty. Sorry to be old-fashioned or a prude. So I'll make you a deal: don't tell me how to have sex with my girlfriend, and I won't tell you how to have sex with yours.

Talk about missing the fucking point. You don't have to talk dirty to get consent. That was an example of having fun with it, but you can use all the sweet romantic words you want to the same damned effect. And if you can't figure that out, you're dumber than I thought you were.

Secondly, you've been given all kinds of reasons why the law should be changed. WOMEN ARE GETTING RAPED AND IT'S DAMNED NEAR IMPOSSIBLE TO PROSECUTE THROUGH TO A CONVICTION BECAUSE THE LAWS ARE NOT ALWAYS WRITTEN WELL. That clear enough for you?

Requiring affirmative consent (as opposed to lack of non-consent) protects women. If that's not a good enough reason for you, then you really are the shithead I thought you were.

It seems to me you're just not into talking, period. You want all the freedom and none of the responsibility. The woman's default condition is consent, in your eyes, so it's up to her to say "no." Which doesn't sound that unreasonable unless you consider the fact that "she didn't fight him off hard enough" is often said by victim-doubters. Unless the woman literally wears herself out or dies physically fending him off, she "let" it happen. I mean, how hard do we have to fight to be taken seriously?
This is just getting old.

Might I also suggest whispering "Would you like to touch my weiner?" and "Can I touch you down there?"

Oh course the way the law is written is satisfactory to you. It virtually guarantees that you can get away with rape.

Personally, I tend to use "legal rape" and "moral rape" to distinguish, but if I'm just talking about "rape," I generally mean the moral definition...
Posted by: Jeff
Personally, I use the same terms. Though unlike you, I try not to just talk about "rape."

C'mon, people... we all know these terms are different. Half the arguments I read are between people trying to claim ownership of the word "rape" for either the criminal or moral context.

What's so freakin' difficult about using the "moral" and "criminal" descriptors, or making it crystal clear which one you mean, ALL THE TIME?

alaric: rape laws are a poor indicator of what is morally acceptable. That is why legal rape is a subset of moral rape, and not the other way around.

This disparity is probably more true for rape than for most other crimes. In fact, the various aspects of all types of rape make it exceedingly difficult to write a rape law that is effective at convicting rapists and that retains the standard Constitutional rights we give to all defendants.

That said, are we moving into legal discussion now? Because if folks are going to suggest that rape law is bad, that's one thing--the laws suck for various reasons, IMO. OTOH if you're going to talk about changing the law to something else, then it's important to point out the issues in BOTH the existing and proposed laws, yes?

The woman's default condition is consent, in your eyes, so it's up to her to say "no." Which doesn't sound that unreasonable unless you consider the fact that "she didn't fight him off hard enough" is often said by victim-doubters. Unless the woman literally wears herself out or dies physically fending him off, she "let" it happen. I mean, how hard do we have to fight to be taken seriously?

Talk about a straw man, Sarah. I've never said anything about resistance, "fighting off" people, anything like that. (I think all or nearly state laws have amended not to require resistance, as well). Maybe there are still some rednecks who believe thus, but not too many.

How hard do you have to "fight" to be taken seriously? Not at all. You just have to say "no." If you don't say no (and aren't unconscious, semi-conscious, whatever, haven't been threatened, whatever), then it's not rape.

Kimmy - again, you're begging the question. Which is, when is it rape?

You are right, I don't think that the protection of women should come at the expense of putting in prison men who honestly believed they had consent because a woman was too timid or passive to say anything. Who "make [no] outward indication that they are opposed."

Sailorman, the reason I sometimes use rape without a qualifier is that if I say, "when you deceive someone to get sex, when you coerce someone to get sex, when you decide that it's better to get forgiveness rather than permission because she might say 'no' if you ask, that's 'moral rape,'" I don't want some loser to hear "these things aren't *really* rape if I can't get arrested for them."

OTOH if you're going to talk about changing the law to something else, then it's important to point out the issues in BOTH the existing and proposed laws, yes?

Personally, I'm not really about changing the laws. Not saying they're all fine as is, but I'm much more about trying to change social attitudes about what's acceptable.

KIMMY: "Call: Are you ready for me to fuck you now?
Response: Yeah, baby, right now!

See how easy that is? And it's fun, too!!"

So obviously I disagree with alot of Alaric has said, but I definitely don't think the model should be required.

Not all people operate that way. Some people are comfortable being expressive like that. Other people prefer using more subtle cues. Some people explicitly don't like it when the guy asks ahead of time "can I kiss you".

Alaric, you're nothing but a jackass rape apologist.

Try putting yourself in the victim's shoes. Say you're in the locker room changing and another guy is joking about sticking his penis in your anus. You don't say no, because you shrugged him off as making a joke. Next thing you know, he's penetrating you, but it's not rape, right? I mean YOU didn't say no. There's also the potential that even if you tried to prosecute him, your complaint could easily be dismissed as "boys will be boys" and it's harmless locker room rough housing, so you should man up and get over it.

You could argue that that's pretty farfetched, but you keep saying that since she didn't explicitly say NO, then by default, she consented and it wasn't rape. It's the same scenario, just different packaging. At least those of us that disagree with your previous posts would also support your claim of rape, why can't you do the same for us?

Alaric, if all men knew they were required to actually receive consent before having sex with someone, where does it matter if the woman is passive or not? Why is the onus on her to keep someone from raping her? The onus is (and always should be) on the man to be sure he never has sex with anyone who doesn't want him back.

There is no such thing as "honestly believing you have consent." Either you receive consent from the woman (she says yes) or you don't. If you don't, you know right there that you don't have consent. No question about it. If you fuck someone without their consent, it's rape.

You are going to great pains to appear very stupid. What benefit does this serve for you?

alaric,

On the generic "just say no" issue. I'll start by agreeing with you: Ideally, those who are capable of saying "no" should say it; communication is good. It would help everyone if folks were more clear.

BUT. But the reality is this: of the subset of "mute" people who don't say yes or no, there is a disconcertingly large number of people who WANTED to say no. That is a big problem. Since those people "couldn't" say no already, then telling them to say no won't help them much.

And it is far worse to HAVE sex you don't want, than to REFRAIN from having sex that you do want. You may wish to call it moral rape, or you may believe that it's legally rape, or you may just think it sucks. But none of those options are good. That is why it is vastly preferable in an ethical sense to require an active "yes" rather than an active "no."

KIMMY: "There is no such thing as "honestly believing you have consent." Either you receive consent from the woman (she says yes) or you don't. If you don't, you know right there that you don't have consent. No question about it. If you fuck someone without their consent, it's rape."

That seems like a pretty clear and reasonable definition to me.

I think the there is some debate about what constitutes yes. For me, if I say "let's have sex" and the woman responds by spreading legs/jumping on top, etc, that seems pretty clear consent, even if she doesn't explicitly say "yes I want to have sex".

If you're that concerned about it, UCLA, phrase it as a question. But the fact that she's taking an active participatory role in the endeavor does help to indicate consent. Still, it never hurts to ask.

"If you're that concerned about it, UCLA, phrase it as a question. But the fact that she's taking an active participatory role in the endeavor does help to indicate consent. Still, it never hurts to ask."

Oh certainly. If it's gray, stay away. I'm definitely on board with the making sure everyone involved is having a happy, consenting, enjoyable experience.

I'm just thinking of my experiences and how they fit "enthusiastic physical response" vs. "actually verbalizing yes", and whether actually verbalizing yes is required for consent. I think I very rarely verbalize "yes", especially in the context of long-term relationships. Even in beginning relationships I don't think I often say "can I kiss you there", "do you want me to touch you there", etc. Instead, you more read the responses - if there is any indication that the advances aren't enthusiastically received either verbally or through physical response, you go backwards.

Say you're in the locker room changing and another guy is joking about sticking his penis in your anus. You don't say no, because you shrugged him off as making a joke. Next thing you know, he's penetrating you, but it's not rape, right?

Right.

It does seem far-fetched -- in general my anus isn't available for penetration, just like a woman's vagina isn't -- but sure. I mean, suppose I'm joining in the joking, just playing along, not taking it seriously. But he thinks I'm serious. Then I bend over to pick up the soap and ... whoa! I'm like, "what the FUCK!" and he backs off.

Sounds like a misunderstanding to me. I'd be pissed, but that definitely isn't rape.

Kimmy - of course you can honestly think you had consent. A teenager can honestly think he had permission to drive mom's car. A guy can interpret a woman looking pouty as permission to kiss her. There is such a thing as a misunderstanding.

(BTW, I actually think I'm being very patient with you. While you continue to call me a shithead, "stupid" and other insults.)

Sailorman, I agree with what you say. It would be great if ideally everyone spoke up when something was going on that they didn't like, and that everyone asked when there was the slightest bit of doubt in their minds. (Although, I'm still not sure that would eliminate the case where a woman gave "no outward sign" that she didn't want what was happening). And in an ethical sense, I agree with you. The question is, what should happen in a legal sense.

Alaric, the opinion a rape apologist has of me is of absolutely no importance to me whatsoever. So, whatever.

And no. You don't "think" you have consent. Either she says yes, or she doesn't. If she doesn't say yes, you don't have consent. The guy's "interpretation" of her facial expression doesn't enter into it at any point. He doesn't have to interpret anything, because consent is all about whether she says yes. Period. End of story. Thank you for playing. Nothing else you say changes that basic fact, which has been repeated to you endlessly throughout this thread. Which is why I'm calling you stupid, because you're acting as if you either haven't read that fact when previously posted, or you can't comprehend it. At least, I've been assuming that you're acting. I could be wrong on that.

She says yes. You have consent. She doesn't say yes. You do not have consent. It really is exactly that simple.

Not interested in whether she's said yes or not? Welcome to the wide wonderful world of being a rapist asshole.

Wow, Kimmy, you really have this inflated opinion of yourself. I guess if you post something and don't change my mind, it's because I haven't read it or don't "comprehend" it, not that I understand your position and disagree. Gee, I must be really stupid, huh. Sorry I'm not just blown away by your brilliance!

It's actually kinda sad that you can't carry on a civil conversation with someone without insulting them.

But: to your point. No one here have actually said what you're arguing now: that if someone doesn't get a verbal "yes" for each and every sexual encounter, they are a rapist. (Apparently, no matter how into-it or reciprocating they may be, or how longstanding the relationship).

If that's true, then I certainly have "raped" my prior girlfriends. And I think that's true for most people here.

Ok, the troll-feeding has gone on long enough.

And Alaric, you are a rape apologist, plain and simple. Enough is enough.