How Drunk Is Too Drunk To Give Consent?

My post last weekend about whether or not Levi Johnston raped Bristol Palin (I think it sounds more like he did than like he didn’t) stirred up quite a few sentiments in all of you. A lot of you assumed she must be lying, because her mother is an evil famewhoring Republican (agreed) and she is cut from the same cloth as her (I think the jury’s still out; we won’t really know that until she stops depending on her mother for money/board). More rationally, some of you thought we don’t yet know enough to decide one way or the other. (Bristol Palin might not be the most articulate storyteller.) And one of you saw fit to go off on an insane, victim-blaming rant about how “more than one woman” you know has decided to turn her consensual sexual experience into a HUGE RAPE LIE in the re-telling because she didn’t want to look like a slut. Because obviously, you were peeking in the windows of all those women at the time that it happened, and know exactly what went down.

There is also the question that someone brought up on their personal blog: “isn’t it up to her whether or not she was raped?” Well, yes and no. Women should process their experiences in whatever way best enables them to move on with their lives, but there are also varying legal definitions of sexual assault which try to be more or less objective. If someone is too drunk to properly give consent, and you have sex with them anyway, you have raped them in the eyes of the law.

This can be tricky, though, because some women might be perfectly comfortable with having sex while drunk, even blackout drunk, while others might feel violated after the fact. I don’t think the law should ever take away an adult woman’s right to consent to any activity she finds pleasurable; that’s why I support BDSM contracts and the like. If you are into the idea of being penetrated or otherwise played with while you’re really drunk and/or passed out, you have the right to consent before the intoxication occurs.

But in the absence of talking about it fully beforehand, you (men) should err on the side of caution. (I realize men are not the only people who commit sexual assault, but I’m using male/female pronouns for the sake of convenience.) I think “enthusiastic consent” is a good rule of thumb (not saying no does not equal saying yes), but even that might not cover every situation. If you don’t know the woman well enough to be sure she’s comfortable with having sex while more than mildly intoxicated, just don’t do it. Even if the accusation wouldn’t hold up in court (and it probably wouldn’t; we have a pathetically low rate of rape convictions), do you really want to risk being party to something that could end up hurting one of your fellow human beings? I wouldn’t. If there’s any doubt in your mind at all whatsoever, just don’t do it. Wait until the next morning! At worst (i.e. if she would’ve been cool with it), she’ll think you’re a caring, cautious person. At best, you will avoid raping someone. There is no downside whatsoever to this.

In the case of Bristol Palin, I think it’s highly unlikely that she told Levi Johnston beforehand that she’d be okay with having sex with him, were she to get blackout drunk, and I find it highly unlikely that she felt okay/consensual with it after the fact. That’s why I made the call that I did.

Then again, there is always the possibility that she’s lying. It’s a low possibility (like I said, 2-8%), but if she is, that’s really, really horrible. I don’t want to believe that even an insane, pro-abstinence demagogue like Sarah Palin would put her daughter up to lying about something like that, but maybe I’ve underestimated her. It would be in line with her ideology which, as one of you pointed out, penalizes any woman who takes an active role in her own sex life, whether through birth control for the purposes of pregnancy prevention, or enthusiastic consent to premarital sex. It will be interesting to see what else Bristol and Sarah have to say on the subject.

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    • Lindsey

      One thing in your article seems off: You mention that only 2-8% of folks lie about rape. Isn’t that the percentage of rape-reports, like the percent of people that go to the police and lie about a rape? I doubt there’s a way to record the percentage of people who lie about rape, with and without involving the police.

      Palin’s story is so sad, though. Poor girl, hopefully her love life improves after this asshat.

    • Preston

      If you consider a man responsible for drink driving you must consider a woman responsible for drunk sex.

    • shocked

      I got really drunk on my wedding night, my wife didn’t drink. We had sex. I now realize she raped me thanks to this article.

    • TheMaxxx

      Ah, reports of lying about rape are far, far higher than the numbers you provided.

      You seem to be taking cases where woman lied about rape, charges were filed and then they were convicted for lying about being rape.

      That’s where the 2%-8% number comes from. It’s not from instances of false rape, it’s from convictions due to false allegations of rape.