Alcohol and Sexual Assault - It's Time to Stop Sex Bias

Alcohol and Sexual Assault - It's Time to Stop Sex Bias

If we are serious about sexual assault, we should reject principles that perplex us when honestly applied to the problem. Some are now advising us to accept, as a guide to personal responsibility and the prevention of sexual assault, the intoxication principle: an intoxicated person cannot consent to sex. So should we accept it? If so, how shall we apply it to Jack and Jill, who had sex while both were intoxicated? According to this principle, neither Jack nor Jill consented to sex, which is perplexing about which, if either, has been assaulted. If Jill has, so has Jack, and if Jack has not, neither has Jill.

Consider a replacement: the has-been-drinking principle: a person who has been drinking cannot consent to sex. But what if Jack and Jill have sex after drinking but neither is intoxicated? The issue of sexual assault is no less baffling here than before: if Jill has been assaulted, so has Jack, and if Jack has not, neither has Jill.

Moreover, the has-been-drinking principle excuses too much. Surely responsibility for resisting the non-intoxicating effects of alcohol applies to men and women alike. Should we then reconsider the intoxication principle? What if Jack and Jill have sex while Jack has been drinking and Jill is intoxicated? On the intoxication principle, Jack is responsible for having sex but Jill is not, which undoubtedly is sometimes sexual assault.

There are two nagging difficulties, however. Suppose when Jill sobers she sincerely denies being sexually assaulted because she wanted to have sex while intoxicated. Must we conclude that a sober, intelligent woman cannot know whether she was assaulted? What, then, are we to think when she says that she was? Also, what if Jack and Jill have sex when he is intoxicated and she has simply been drinking? An even-handed, honest application of the intoxication principle should conclude that Jill sexually assaulted Jack. But many do not find this sexual assault at all, even if Jack sincerely objects when sober that he never consented to sex.

In charging men with assault, universities sometimes evoke principles that hold men, but not women, responsible for sex when alcohol is involved. For well thought-out reasons, our legal system rejects such principles, prompting universities to devise legal systems all their own. They sometimes implement a gender-differentiated drinking principle: if a woman has been drinking, she cannot consent to sex, but a man consents to all his sexual behavior whether he is fully sober, has been drinking or is intoxicated.