There’s always the argument that, if it’s possible to consent to sex while under the influence of alcohol when normally you wouldn’t, then the person loses some of that right to use it as a defense the moment they take that first drink. One might say by taking that first drink, you open yourself to the possibility that one might lead to another, and another, and another and eventually waking up next to a guy (or girl) you don’t know and terribly afraid of something you (or they) did that night.
To me, sure there’s a lot of grey areas in that forbidden land of who said what and when and under what degree of impairment - but it’s the responsibility of each individual to not drink if there’s a chance that such an unwanted event could occur.
Barry, you could a organize society according to the rule you propose, but we have not. In general, I cannot agree to sell my house for you $10 when I am drunk. Neither can a nurse get me to consent to giving her my kidney as I am coming off of general anesthesia (despite my having known fully well that I would be groggy when I got out of it.)
The problem with Bob’s example is that it is something where a “take-back” is possible. You can invalidate a contract, but you can’t un-make a night of groggy sex. Of course, if you agree to sell your kidney under the influence and it is taken before you sober up, that’s somewhat more comparable. Though even there you have expectations at play. A man or woman that gets drunk knows that there are certain risks involved from something relatively minor like coyote ugly to something severe like rape. There is no expectation that a kidney-seller might want you to become a vendor on the spot.
That being said, I’m probably more sympathetic to Bob’s point of view than I am Barry’s. A woman that gets drunk and gets raped may share some moral and logistical culpability, but I could not even remotely support a regime where she bears moral culpability in all cases. For one thing, the man may have been less than forthcoming about what he put in the mixed drinks and it should not be up to her to prove otherwise.
When it’s obvious that the man got the woman drunk for the sake of fornication, it’s pretty clearly rape. When a woman gets drunk independently and a man (knowing that her judgment is impaired by alcohol) and in a sober state takes advantage of her, that’s something less severe than forcible rape but is extremely serious nonetheless.
But there are a lot of gray areas. If a woman is in extreme emotional turmoil, she may consent to actions that she would later regret. Her state-of-mind may be such that it’s actually worse than if she should be drinking. I can imagine scenarios in which this is actually worse than taking advantage of someone that got independently drunk. The woman is less likely to have been put in that awful emotional place as voluntarily as the woman got drunk, for instance. The problem is that opening up a law to this effect, criminally prohibiting sex because the woman was not emotionally prepared for it, opens doors that few have seriously suggested opening and even if I did oppose the criminalization of having sex with a drunk woman, one wrong need not justify another.
Another area of concern when it comes to rape law is that when a drunk woman has sex, there is a not-unsubstantial likelihood that the man is drunk as well. What is the right approach when that is the case? Most of the time the woman will not feel taken advantage of and would not press charges. But what if she does? Being drunk is not a defense against committing other crimes. Even something like solicitation, where there that’s exactly the sort of misjudgment that alcohol would set free to roam. Should in that vein, why should we make an exception for rape?
Some women (and some men, to be sure) are rather unsympathetic to this plight. The idea is that he should have thought of that before he got drunk. But of course that same argument could be used for the woman, as Barry suggests. The second prong to the argument is that consensual drunken sex wouldn’t be brought to the courts because the hardship a woman faces when making rape accusations would make it so that she would only step forward if it were something serious. There is definitely some truth to this as I would bet a substantial sum that unreported rape cases are much more frequent than false accusations. But relying on the honor and judgment of women can be a pretty serious risk to impose on men.
One of the stimying problems in the discussion is that by and large men are far-and-away more likely to be accused of rape and women are far-and-away more likely to be raped. That puts each side of the gender divide of having to assess the risk to the other. No great surprise, men often assert that women should assume the risks (or assumed them with the behavior that led up to the act) and women assert that men should.
Though it does happen, men are rarely raped and so it’s hard to fully appreciate a woman’s fear of it and why it’s so important that women that are raped have as many rights as possible. If you make it harder to make the accusation, there will be fewer stepping forward and more ways for men to evade responsibility for their acts. Women, on the other hand, are rarely (falsely or otherwise) accused of rape and so it’s hard for them to fully appreciate men’s fear of it and why we’re often very apprehensive about making rape charges easier to make. The easier it is for women to make substantive accusations of rape, the more vulnerable they are even if they’ve done nothing wrong.
As I say with regularity, it’s easy to be cavalier about the risks assigned to others than to ourselves.