Katherine Connell in the National Review writes:
In its definition of rape, the CDC’s “National Intimate Partner and Sexual Violence” survey includes sex that occurred when the victim was drunk or high, regardless of whether she was incapacitated or unable to give consent. Participants were asked to respond to the question: “When you were drunk, high, drugged, or passed out and unable to give consent, how many people ever had vaginal sex with you?” A woman could list instances of consensual sex she had while intoxicated that she did not consider to be rape — that were in fact not rape — and the researchers would nonetheless classify her as a rape victim.
Connell’s point, I think, is that although the researchers intended interview subjects to hear:
“When you were [drunk, high, drugged, or passed out] and [unable to give consent], how many people ever had vaginal sex with you?”
Perhaps what they actually heard was:
“When you were [drunk, high, drugged,] or [passed out and unable to give consent], how many people ever had vaginal sex with you?”
That would be a problem. Maybe the researchers should have put that question into some sort of context, making it clear what they were referring to? You know, like the actual, full text of the question from the survey did:
Sometimes sex happens when a person is unable to consent to it or stop it from happening because they were drunk, high, drugged, or passed out from alcohol, drugs, or medications. This can include times when they voluntarily consumed alcohol or drugs or they were given drugs or alcohol without their knowledge or consent. Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault.1
When you were drunk, high, drugged, or passed out and unable to consent, how many people ever….
* had vaginal sex with you? By vaginal sex, we mean….
The National Review certainly doesn’t stand alone on this one – see Christina Hoff Sommers, who made the same mistake (or “mistake”?) in the Washington Post. As did Jacob Sullum in Reason. So did Charlotte Hayes at the Independent Woman’s Forum (although she was just quoting the Sommers piece, as did World News Daily and about a thousand right-wing blogs).
In fact, I’ve been looking all afternoon, and I haven’t found a single right-wing source discussing the NISVS that didn’t truncate the “When you were drunk, high, drugged, or passed out” question in exactly the way Katherine Connell did.
I can see how the error happened; the CDC document that Sommers linked to contains only a summary of the questionnaire, not the full questionnaire. So it would be an easy mistake to make, especially if you don’t know much about social science and what these sort of questionnaires look like.2
But it’s also confirmation bias at work. They found what they wanted, so why risk messing that up by doing further research and finding out what the questionnaire actually said?
- Note: When I originally wrote this post, I accidentally left the sentence “Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault” out, due to a cut and paste error. [↩]
- That excuse won’t wash with Christina Hoff Sommers, who has been reporting on (and misrepresenting) rape surveys for decades, and should therefore have known better. [↩]
Although broadly I think you have the right of it here, there are many people (perhaps more widely on the right? I dunno) who do not automatically accept intoxicated/incapacitated = unable to consent. Often, yes. But it is my view, though I think you have to be INCREDIBLY CAREFUL HERE especially when judging the consent of other people, especially young drunken and stupid people, that
“Man. I am going to get so high/hammered/buzzed/blasted. And then, as we jointly planned in a gleeful paroxysm of anticipatory consent, Alan/Kaitlyn/the football team/the campus MENSA group and I are going to fuck like crazed weasels for DAYS. I hope he/she/they don’t pass out first this time, its so easy to accidentally batter their head against the wall if they aren’t awake to notice. Ooh, mental note: get bandages, gallon of lube, seven billion units of penicillin.”
is a perfectly valid thing for a sexually and volitionally competent human being to say. And that in makes the “conservative” assumption that goes against the language the study uses, which seems to only accept the validity of the “liberal” “all intoxication = nonconsent” viewpoint, somewhat more coherent – we’re correcting in our mind the viewpoint error of the survey writer and compensating for those times we got drunk as we meant to, and got laid as we meant to.
I have to admit being completely flummoxed by this. Can you spell it out for me?
I mean, if I say “I’m asking you only to tell me about things that happened on Tuesday,” that very clearly implies that I’m aware that Tuesday is not the only day of the week. If I did think Tuesday was the only day of the week, then the distinction I made in the question I just asked you would be meaningless.
The question was introduced by saying “Sometimes sex happens when a person is unable to consent to it or stop it from happening because they were drunk, high, drugged, or passed out from alcohol, drugs, or medications.” I don’t understand – really, I’m bewildered – that you interpret this as meaning “all intoxication = nonconsent.” If they thought all intoxication equals nonconsent, then why did they make the “unable to consent or stop it from happening” distinction? If they thought the way you wrongly believe they thought, then they would have just asked “have you ever had sex when you were drunk, high, or drugged,” and not brought up “unable to consent” at all.
Trigger warning for talk about regretted but consented-to sex.
I can consent in advance, which the question does not come out and admit in its language. I can also consent while blasted.
(I wrote ‘you’ at first, before recognizing that hey, I don’t know that. Maybe you can’t, and I need to recognize that the question does describe all the options you think are possible for you.)
Since I can consent in advance and/or while high as fuck, the question, perhaps quite unintentionally – appears to elide some of the choices. Ergo, people who think that’s a choice start blowing off the question’s integrity as a measure. “They’re going to count what my gf and I did yesterday as an assault, though both of us consider that absurd. How many other non-assaults are being folded in?”
It could be that the question author thinks it blazingly obvious that the question isn’t addressing Robert Hayes and his bleeding-edge disregard for having every possible faculty on line and sober before making a consent decision, but it doesn’t feel like that.
I think I see why this is bewildering to you but I’m not sure how to explain it better. How about this: if the question was rephrased to add the word “unwanted” before the first instance of “sex”, and to add a parenthetical “(Sex which all participants wanted to happen at the time, even if one or more of the people involved were drunk or high, and even if one or more of the participants later regretted or wished the sex had not happened, is not what we are asking about here.)”
I think that most conservatives would then have no problem with taking the resulting number as a good sample figure of rape/sexual assault. Would most liberals? I suspect some or many would, but I am not sure about most.
Robert, thanks for explaining that.
The intro to this section of the questionnaire says:
It doesn’t seem likely to me that someone hearing that, and then hearing the question we’re discussing, would have failed to get the point that they’re being asked about unwanted sex, and instead answer “yes” to refer to the amazingly great, mutually agreed on drunk sex they had with their so last month.
But it’s also true that, if someone is genuinely incapable of consenting, the “unwanted” measure becomes irrelevant – not only to liberals, but under most state laws. For example, if I’m unconscious and someone I don’t know and have never had a prior arrangement to have unconscious sex with has sex with me, that’s rape – and it remains rape even if after I wake up I say it was “wanted” sex.
In my view, someone who drunkenly consents to have sex is not someone “unable to provide consent to sex.” In the real world, many people who are drunk or high do consent to have sex while in that state. But someone unconscious, or too drugged/drunk to substantially comprehend what’s happening, is unable to consent to sex. Do you agree that it is possible to be so drunk or drugged as to be “unable to provide consent to sex”?
Nor am I convinced that putting “unwanted” directly into the question, as well as in the intro, would satisfy the conservative critics. In her survey (pdf file, see page 167), Mary Koss used the phrase “when you didn’t want to” in every single question she asked about rape, and liberals did not object. But conservatives – such as Christina Hoff Sommers, who was the leading conservative on criticizing Koss just as she’s the leading conservative on criticizing this study – didn’t find that adequate.
I don’t doubt that you’re speaking in good faith in this thread. However, after study after study after study after study has been dismissed by Cristina Hoff Sommers and other conservatives, I’m beginning to doubt that there is any reasonable wording of questions in a rape prevalence survey that CHS and her many fans would not contrive or rationalize away.
Robert:
When the interviewer starts the section on sexual violence the interviewer relate this small intro before proceeding to any questions:
I think this makes it even more clear that the interviewer is going to ask about unwanted sexual situations. I know of a very few people who actually believe that any level of intoxication removes the ability to consent (mostly from the comment fields on some feminist blogs), but I am also pretty sure that such belief is so uncommon among the general population that those people would have no discernible impact on a survey with such a broad sample as the NISVS 2010.
Ampersand:
Great find of that questionaire. I have looked for it myself a while back, but weren’t able to find a reference/link to it on the NISVS pages on the CDC site so I presumed it wasn’t available for the public. May I ask how you came across it?
Amp, yes, I think it possible for a person to be so incapacitated that they find themselves unable to function well enough to make a decision. I think it’s their call that morally matters while the rest of us have opinions.
I take your points about people who are not as sterling of intellectual rigor as I am. Damn it, we need more Robert in this world!
Fortunately, if the other person involved was also drunk, they were unable to consent too; therefore, it was not rape (or, perhaps, two rapes: imagine, a dual crime with dual victims and no perpetrator!).
I do not think that is correct.
Rejection of apparent consent (or a requirement for a partner to attempt to verify the truthfulness of apparent consent, or to verify the level of intoxication; or to check mental ability) is sometimes, but not commonly, reflected in criminal law.
I believe many states follow the old common law model, in which a party is largely held responsible for the predictable consequences of their voluntary actions.* IOW, if you do ____ when you’re drunk (whether ___ is “give money to strangers,” “have sex with strangers,” or “assault strangers”), then the solution is to avoid getting drunk and NOT to file charges for theft or rape, or get a “smack people free” card. This, FWIW, is why drunk rapists don’t get out of jail free. (Even those states allow you to move forward if you did not get drunk voluntarily.)
I’m not suggesting this as a moral analysis, but merely explaining that I don’t think your “more states…” comment isn’t correct. Unless you’ve done a survey of all of the laws; I may be wrong.
For an example of good legal analyses of these issues, my own state of Massachusetts (which does allow for “too drunk to consent” convictions) has a couple of really interesting rape cases.
The first one addresses a variety of topics, including the question of “the level of intoxication required. More interestingly, it also inserts an new element into the analysis: the prosecution must prove not only intoxication, but 1) that the intoxication rendered the complainant incapable of consent and 2) that the defendant knew or should have known that the condition rendered the complainant incapable of consenting.
The second case addresses the “what if they’re BOTH shitfaced drunk?” question. It adds a new defense element. As always, the defendant’s voluntary intoxication does not count with respect to his actions (i.e. he can’t escape the fact of having physically raped someone by saying he was drunk.) But the defendant’s voluntary intoxication does count with respect to his knowledge, which is #2 in the first case. IOW, if Bob is being charged with raping Jane because she was too drunk to consent, then Bob can say “I was too drunk to know how drunk Jane was.”
* There’s a fascinating old case where a drunk guy signs away a farm, on a napkin, at a bar. But I digress.
I think you could probably design a rape study which would satisfy conservatives. I am sure that it would come up with a much lower rape prevalence, which would then make liberals reject it.
That’s largely because conservatives and liberals are looking at two entirely different things w/r/t rape and sexual assault.
Many liberals are attempting to capture things in the “unwanted /unconsented-to” category, and–depending on how liberal they are–are looking at things from genital penetration all the way down to the male gaze or verbal comments. They are looking from the perspective of the victims.
Many conservatives (and the criminal code) are attempting to capture the criminal act. They’re looking only at intentional violation of someone else’s clearly-stated boundary of consent. And they generally only apply it to high level physical conduct approaching intercourse. Since they’re looking at both sides of the encounter (in a purported attempt to reach an objective “was this rape?” answer instead of a “does the victim believe she was raped?” answer) then they also have to analyze the situation from the perspective of the other party–a perspective which many liberals affirmatively reject as irrelevant.
It doesn’t take a genius to know that those numbers are going to be radically different.
IF ANYONE here was arguing that all drunk sex is rape, full stop, then this argument would make some sense, instead of being just pointle3ss snark that does nothing to contribute to the discussion.
But no one has made that argument.
Surely you’re not saying that ‘many liberals’ want to include incidents of ‘male gaze’ and ‘verbal comments’ as rape.
It sounds like that’s what you’re saying, but that’s literally delusional, so I figure you must mean something else.
—Myca
No, he’s saying that gaze/comments fall into the ‘unwanted/unconsented-to’ general category, which liberals tend to see as a unified continuum of escalating transgression. IE, a liberal might say “there were 10,000 incidents of extremely rude staring, 5,000 extremely intrusive comments, and 100 physical sexual assaults, and these 15,100 incidents are all part of a system of…[800 words] which we need to dismantle.”
Whereas conservatives are more likely to think or say “there were 100 violent assaults, which is a horrible crime. Oh yeah, and then there was kind of the usual background noise of lots of people being jerks but not to a criminal level, whadaryagonnado. So what are we going to do about these 100 rapes that are the major problem?”
Neither viewpoint is horrible, they’re just focusing in different ways. I personally think the “liberal” view is one that’s a lot more utilitarian for activists, counselors, etc. and that the “conservative” view is a lot more useful for prosecutors. Though cops and prosecutors can draw a valuable lesson in seeing how much of the 15,000 instances of non-rape were perpetrated by their 100 outright assaulters, and activists could probably draw some insights from the harder-edged sorting mentality of the legal types. Usually thinking about someone else’s point of view brings benefits.
Of course not. Perhaps I should have put a period where the “, and” was. In any case, Robert’s explanation is pretty much accurate.
Hello. We are conducting a rape prevalence survey.
Q1. Have you ever been raped?
You’ll find a survey of all the laws here (pdf link), with a summary table starting on page 96. The details vary from state to state, obviously, but in general I think it supports what I wrote: It is usually illegal to have sex with someone who is too blasted to be able to understand what’s going on.
The National District Attorneys Association, in an essay on intoxication and rape (pdf), nutshells US law like this:
I did specify “reasonable.” Since decades of research have established that your suggested method will lead to massive undermeasurement of rape prevalence, I don’t think it can be called a “reasonable” approach.
I’m sure many conservatives would like to measure global warming by saying that if it snows in winter, global warming is a myth. However, that doesn’t make it a reasonable way to measure.
Cool, cool. I figured it was something like that, but thought I should ask.
—Myca
“Since decades of research have established that your suggested method will lead to massive undermeasurement of rape prevalence”
Well, it leads to a massive undermeasurement of rape prevalence if you accept the definitions of the researchers and, well, you yourself, as being better than the definitions of, er, rape survivors.
I realize that is a “hey Amp, you’re a moral monster” way of framing it and that’s not my intention. I understand at least a little bit some of the things – pragmatic, economic, moral, psychological, spiritual, cultural – which really do (as I understand it) cause some rape survivors to deny that what happened was rape, or to not believe that it was rape even though most outside observers would think it clearly was, or to make special pleadings for a rapist who might be in their family or social group and thus explain away ‘what happened that summer’ as being much different than all the other factually identical things that happened that were totally rape.
On the other hand I wonder if maybe it would be better to focus energy on “making it OK to be a rape survivor, making it OK to say that this happened, making it OK to testify fearlessly whether in court or to peers or family or to society”, rather than on “let’s figure out how often these people are kidding themselves or trying to pull a fast one on us or just PTSD from being traumatized and bump the self-report numbers by the appropriate factor”.
Again, that’s a “you guys sure are evil”-sounding phrasing, which I’m falling back on not because I think you guys are evil but because it would take me 500 pages to write out the “why you aren’t an asshole” version. (And I’ll freely admit that there is room both for ‘let’s start being more supportive of survivors’ and ‘let’s look a little deeper at what survivors and putative non-survivors are saying and see if we’re getting the whole message’.)
As G&W has said on occasion, the adversarial and criminal nature of the judicial handling of the cases is not the right environment for a nurturing, lets-affirm-your-feelings interrogatory or narrative style, which just makes it suck for survivors even worse. It’s a miserably tangled-up problem.
Abbe Faria:
Here are some examples of incidents which I would call rape, but the rape victim did not call rape. Do you disagree?
Well, look, the alternative is, “as long as we can successfully shame a rape survivor into thinking that she is a filthy slut who brought it on herself, it’s not really rape.”
I mean, if we want to have the ‘moral monster’ conversation and all.
—Myca
Amp,
Please understand that I would be HAPPY to be wrong here. I am not disagreeing out of spite, but because I want to clarify something.
When you say “genuinely incapable of consenting” are you talking about what you might call the “normal Amp conversation definition,” in which you IIRC have expressed a feeling that people who are really drunk are not genuinely capable of consenting? Or are you trying to match some sort of statutes which address things like “legally incapable of consenting?” I ask because, like the word “rape,” the words “capable of consenting” mean very different things in the moral and criminal-justice sense.
For example, the chart shows Alaska as having a “substantially impaired (no intoxication requirement)” law. Yahoo, Alaska, right? Surely that means that supre-drunk Jane who is standing there and slurring “let’s screw” is going to be able to bring a rape charge, right?
Well, the devil is in the definitions. Starting with the first one in that category, Alaska sez:
Not “making bad decisions.” Not “incapable of making rational decisions.” And definitely not merely “incapable of understanding the nature or consequences of the person’s conduct, including the potential for harm to that person” and I say that with some surety because that precise phrase IS part of the “mentally incapable due to a disease or defect” definition but IS NOT in the “incapacitated” definition.
I mean, sure, Alaska technically has an “substantial impairment” law, but it’s so worthless that good freakin’ luck actually USING it.
(I’m not going to address the states which, like mine, actually bother to specifically make it a crime even if you voluntarily get shitfaced. Those are more likely to be fine.)
Next up, COLORADO.
The consent definition is actually OK: “Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act”
The sexual assault definitions are much lighter weight:
If you imagine a set of people who you would classify as “too drunk to give meaningful consent,” the set of people who would be legally held (beyond a reasonable doubt, mind you) as being incapable of appraising their own conduct would be extremely small, at which point of course the state still needs to prove (again, beyond a reasonable doubt) that the accused actually knew that. I mean sure, if you’re pissing your pants you have some proof. But that’s a hard hill to climb for someone who can order a drink, or tell their friend “I’m fine, he’ll drive me home,” and so on.
The NISVSS mispresents itself as a general health survey, takes 10 minutes before it gets to its real objective and asks ‘easy yes’ quesions about relationships and domestic abuse, after 20 minutes of questioning it asks the rape question. This apparently needs three introductory paragraphs to fully contextualize, two of which were read out a couple of minutes back, and has two main clauses, four conditions, asks for a number as a response, and has a sub-sentence which explains a technical term. Is this a “reasonable” approach? I’d suggest most people will be mildly confused, tired, handing on for their $40, and might not be concentrating on accurately parsing the question.
That’s what my ultra to-the-point survey was trying to illustrate.
That’s pretty incoherent, Robert. What you’re (sort of) objecting to is when researchers use descriptive tactics, rather than asking “were you raped?,” to measure rape prevalence, and thus count some people as rape survivors who would answer “no” or “I’m not sure” to being asked “were you raped?”
However, if you’re saying that those who answer “no” or “I’m not sure” should not be counted as having been raped, then it’s a bit bizarre to refer to those same people as “rape survivors” while complaining they’re not being believed.
In general, in large-scape crime surveys, criminologists don’t rely on interview subjects to be able to identify whether or not what happened to them was a crime and which crime it was.
For instance, here’s a question from the National Crime Victims Survey:
If they answer “yes” to any of these, they will be asked follow-up questions. If the person being interviewed says “my boss stole my dignity!,” that’s not going to be counted as a crime. If the person reports that they put their gameboy down on top of a mailbox while mailing a letter, and by the time they remembered and came back the gameboy was gone, they’re going to count that as a crime even if the interview subject says “but I don’t think it was a crime, because that DS was years out of date anyway, and anyway I just left it lying there, what did I expect would happen?”
The interview subject will not be asked if the event they described was technically a crime or not; they will not be asked if the crime in question was larceny, or burglary, or grand theft auto. These determinations are made (for purposes of the NCVS’s tabulations) by the definitions used by researchers.
To say “a crime is whatever each interviewee says is a crime” would make the NCVS no longer a measure of how much crime occurs; instead, it would be a measure of how much crime is perceived to have occurred. That might be worth doing in addition to prevalence research, but it’s not a substitute for crime prevalence research.
This methodology is not a feminist invention. This is standard technique, and has been for decades. Why should rape be measured differently than every other crime? I think the answer is that folks like Christina Hoff Sommers have a political bias in favor of low numbers, and don’t care about methodology.
You’ve answered yourself for me. :-)
I don’t think that has much to do with the design of rape prevalence surveys? In any case, some feminists would certainly agree with that; see the restorative justice movement, for example.
Abbe, misleading subjects as to the real subject of a study is a very common practice, for the obvious reason that telling subjects the subject of a study can create bias.
This is not an especially long survey – the NCVS could easily take longer, and Hoff Sommers says that’s “the gold standard” (which it really isn’t). The subject matter is a great deal more interesting than most surveys. There are a lot of long social science surveys that nonetheless have been found to create good data (most famously, the long-form census). Furthermore, this survey – like most good surveys – involved pre-testing to make sure that the survey and its wording were comprehensible.
The $40 reward – which was actually offered to only a small minority of subjects – was done for very good reason, which was to be able to find out if there were any significant statistical differences between those who need only a little incentive to participate vs. those who’d say “no” without a strong incentive. Since the difference between those who agree to participate vs those who don’t is a potential source of unintended bias, it’s a good idea to try to mitigate for that (although perfect mitigation is impossible).
In short, your arguments seem like contrived rationalizations to justify dismissing the NISVS, rather than criticisms grounded in familiarity with good survey design. None of the things you focus on are unusual in social science; on the contrary, they are techniques used by many research surveys that are generally considered well-designed.
You do not recall correctly. I have said over and over, including on this thread, that I think some people who are drunk can meaningfully consent to have sex.
As I said earlier on this thread:
I honestly don’t know what I can do to make that any clearer.
In both Alaska and Colorado (your two chosen examples), there are circumstances in which having sex with someone too intoxicated to consent is a crime, so I don’t know why you think those examples contradict what I wrote.
(It’s also true that there are many more instances of drunken sex which is not rape or any other crime. That doesn’t contradict what I said, because I’m not claiming that “people who are really drunk are not genuinely capable of consenting.” I’m not claiming all drunk sex is rape. I’m not claiming all drunken sex is rape. I’m not claiming all drunken sex is rape.)
I am claiming that in the US, although the details vary from state to state, in virtually every state there is some sort of law that makes having sex with someone who is so extremely intoxicated that they actually cannot consent a crime.
And I agree that rape via intoxication is unlikely to lead to a successful prosecution (or even an arrest). But that actually doesn’t answer the question of whether or not it’s illegal. It’s very unlikely that someone deliberately cheating on her taxes in a minor way will ever be caught or prosecuted, but that doesn’t mean tax evasion is legal. It’s very unlikely that any individual litterbug will be caught and given a ticket, but that doesn’t mean littering is legal. For that matter, it’s very unlikely that any individual rapist is going to be arrested or convicted, but rape is still illegal.
Also, to the person calling me a coward because I’m not approving his comments on this thread about me being fat and not getting laid, it’s hard to take the accusation of “cowardice” seriously coming from someone pathetically using a fake name and email because he’s afraid to insult me from his real identity. (Although to be fair, I doubt I’d take it seriously in any case.)
I mean, don’t get me wrong: I am a coward. I can think of several occasions in my life when, faced with danger, I cowered, which is surely the very definition of being a coward. When someone broke into my house, I didn’t go after him/her; I hid in the TV room and called the police. But not posting insulting or stupid comments isn’t what makes me a coward. It doesn’t take courage to do that.
It’s amazing how many trolls try the “you’re too cowardly to approve this comment, fatass” strategy. That can’t work very often, can it?
Tamen:
Nothing special. I googgled for phrases from the questionnaire that I had seen quoted in scholarly articles about the NISVS.
By the way, I saw you write on an anti-feminist blog:
Yes, but can you deduce that they have enough data for the male/female proportion to be statistically significant? IIRC, that’s why they said they didn’t report that.
Somewhat related: The national research council have looked upon how the NCVS can be improved in terms of capturing sexual violence. They have released a report available here: http://www.nap.edu/openbook.php?record_id=18605
I have read it in full and it seems the prospects of getting accurate statistics on male victimization of rape and sexual assault continues to be bleak: http://tamenwrote.wordpress.com/2014/01/06/male-victims-ignored-again-estimating-the-incidence-of-rape-and-sexual-assault-by-the-national-research-council/
Robert:
In addition to what others have said in this thread, it also means we accept the definitions of researchers as being better than the definitions of rape survivors at that particular point in time, possibly quite soon after the crime occurred. Some people take a few years to come to terms with what happened to them, to give it that kind of name (as you describe in your comment). Are they not rape victims until they call it rape? From a practical point of view, not only has the crime already occurred, but the possible mental effects on the victim (such as PTSD) may already be present, so it seems to me that waiting until the survivor can call it rape is not the best way to go.
Abbe Fariah @14: I haven’t had my coffee yet, and I can still easily generate the gender-hustler column for that one. “This study’s definitions are so vague that it would allow any woman who experienced ‘buyer’s remorse’ and talked herself into believing she was raped to count herself as a rape victim on this survey. It overinflates rape statistics and includes acts that no court of law, and no sensible person, would call ‘rape’. What kind of study fails to define even its most basic terms?”
Amp @25: there is nothing you can do to clarify a definition to people whose arguments rely in part on your definition being unclear.
What baffles me about the ‘drunk consent’ discussions is that there always seems to be a consensus that an intoxicated person can’t consent if someone else caused the intoxication. If the argument is that there are situations where a drunk (or drugged) person may nonetheless be able to give meaningful consent, why should it matter how the alcohol got in their system? The point is that they’re still in sufficient command of themselves to make the decision, and whether it’s immoral to drug people (it is, I hope we would all agree) is an entirely separate issue.
Mythago, broadly, I agree with your points, and I specifically agree with your points in #30 and applaud your second point.
But I have a concern that this argument is leaping a significant chasm:
For many people, part of their self-assessment is the knowledge of how much of a mind/mood-altering substance they have ingested, because they can then better distinguish, for instance, regular euphoria from the artificially-induced varieties. Many (not all) drugs, and certainly alcohol, relax inhibitions and/or cloud judgement, and so it can be useful to know that you’ve had two drinks, or five, and so maybe the fact that you feel so completely at ease is not to be trusted.
Which is why you see YouTube videos made by aspiring rapists (ahem) “pickup-artists” who demonstrate how to get people drunker than they think they are — it works precisely because people don’t know that they didn’t actually drink just two beers, but rather two beers and three shots of vodka.
Also, as I’m sure you know, how you ingest matters. The stomach absorbs, for instance, alcohol, much less readily than the intestine (roughly 20% by volume versus 80%, respectively), so if there’s no solid food in the stomach, it passes liquids through the pyloric sphincter and into the intestine, where alcohol absorbs faster into the bloodstream, and you get a higher peak impairment level, sooner. So, if you are an inexperienced drinker who thinks a beer is a beer is a beer, you may not understand how impaired you actually are when you have that beer after an active day in the sun and before you have food… and therefore you may think that the warm fuzzies you have are the genuine article rather than the alcohol-handy kind. Meanwhile, if you’re a predator, you can leverage that: “Oh, hey, the snacks aren’t out of the oven, yet, but hey, here’s a beer.”
(Or, you may think that the fear-response is genuine and act on it, which is why people in my line of work like to have all the exits covered, if at all possible, before we knock on the door at the underage drinking party, so that we don’t end up hacking about in the woods in below-freezing temperatures, looking for drunk teenagers in light clothing who wanted to avoid getting caught by the cops and now are getting progressively more and more hypothermic.)
Finally, I have observed that some people are very bad at self-assessment. I have arrested many drivers who claimed that there were not impaired at all, but who were demonstrably or obviously impaired, and who later had their BAC or BrAC measured at twice the legal limit. Many of these still claim that they’re not impaired even after being informed of the test result. Some of that is garden-variety ego and denial (statistically; your individual experience will vary from the average), but I have a pet theory that some of it is that people who are not in the habit of paying attention to their bodies and their own subjective state. Victims of abuse tend to be more dissociative in that way than others, especially in moments of emotional stress, and that may impair their ability to accurately self-assess impairment. Which could explain part of the cycle of revictimization which many people go through.
So, while I agree with you in principle that a self-aware, practiced user who knows her dose is responsible for her own self-assessment, I note that there are caveats, details and devils therein.
Grace
What is your excuse for truncating and misreporting the question?
@Grace Annam, your comment notes that people don’t always know how they are going to be affected by alcohol. And, of course, people may be able to self-assess that they are drunker than they expected to be even if somebody spiked their drink. What I’m getting at is the idea that ‘you were probably just having drunk sex, it wasn’t rape’ is generally dismissed when somebody did not intend to drink. In other words, I have not seen anyone argue “Yes, if somebody snuck a shot of vodka into your orange juice and you drank it without noticing, you were probably capable of consent – but the immorality of spiking drinks is such that we will treat it as rape.” There’s an assumption that of course a person who didn’t mean to drink alcohol (or, perhaps, believed they were drinking something much ‘lighter’ than they were actually given) cannot possibly self-assess or be able to give drunken consent, which chemically makes no sense.
Well, I didn’t truncate and misreport; they did. :-p
The easy-to-find public document about the NISVS is a lengthy summary report, which only gives truncated questions (it doesn’t claim to be the full questionnaire). That’s what I suspect CHS and the other folks read and quoted.
I think that’s not much of an excuse for people who are, after all, being paid to write this stuff, and should do basic research. Sommers, in particular, has spent years writing about these studies, and should have known better.
But, as I said, confirmation bias.
Mythago – I’m not sure that is correct. Being able to know that you are about to be drunk can have an effect on how you prepare for the drunken state. Making decisions and laying out internal guidelines before you are drunk does make a real difference to how you react to things while you are drunk.
In other words, you are right that alcohol is alcohol and that the chemical makeup doesn’t change based on whether or not someone is aware they are consuming it. But the state of the brain at the time in which the alcohol is consumed does make a difference on behaviour, and this is a factor that is definitely affected by foreknowledge.
Also, self-assessing whether you are drunk or not is a task that sometimes needs to be actively engaged in; it’s possible to be drunk or drugged without realizing it. Sure, if that person stops to think about whether they are drunk, they’ll realize it, but while drunk, they might not realize they have a reason to do the self-assessment. If they are aware that they consumed significant amounts of alcohol, that gives them such a reason.
None of this means that people who are deliberately drunk are necessarily able to have the right level of introspection to be able to make decisions or give consent – that really depends on the situation. But someone who was given alcohol or drugs unaware is definitely at a disadvantage.
Ampersand; you have misquoted the question.
Mythago; you are absolutely right, but you are not arguing with people who are thinking about brain function and chemistry, you are arguing with 5 centuries of Calvinism and the idea the demon drink morally corrupts the virtuous – none of the science or logic in the world will help you there.
Huh! Right you are. I have no idea how I managed to do that. I’ve edited the post to correct the error.
However, I don’t think including the sentence I unintentionally left out significantly undermines the argument I was making. I don’t think the same can be said for the way CHS and other right-wingers have truncated the question.
Nonetheless, I admit that there’s egg on my face. :-) Thanks for pointing the error out.
@Eytan Zweig – certainly. But ‘at a disadvantage’ is not ‘helpless’, and ‘foreknowledge’ isn’t ‘absolute control and choice’. (To be clear, I’m not arguing that it’s OK to drug people or spike their drinks.).
@Abbe Faria: sorry, you lost me. I don’t think it’s Calvinism to frown on drugging people, or to note that drunk people are not always mentally as up to par as sober people.
Mythago – I know you’re not arguing that it’s ok to drug people, but I don’t think I understand what you *are* arguing for. I originally thought you were arguing that in a case where someone spikes a drink and then has sex with the person whose drink has been spiked, then we should treat these as two independent issues – essentially, that the fact that the drink was spiked shouldn’t be taken to be any more or less a factor in whether the sex was consensual than the same amount of alcohol/drugs consumed knowingly would be. My argument is that is not correct. But your responses in @38 make me think I may have misunderstood what you are trying to say.
@Eytan Zweig, I may not be setting out well because it is complicated. Setting aside actually drugging someone into unconsciousness, I’m addressing the argument that people can be intoxicated and still give meaningful consent in some cases, ie drunk sex is not always rape (which I agree with). Does this argument change if the person got drunk because of the actions of another person (spiking their nonalcoholic drink, or making it much stronger than the drinker knew)? Does it change if the person responsible for spiking their drink did so with the intent of lowering their ability to give consent?
I agree with you that drunk sex is not always rape. But I think that the argument does potentially change if it was the intoxication was caused by another person.
To address the easy case first, I think if the person having sex with the intoxicated person is aware of the fact that that person has had a spiked drink (whether or not it is the person who actually did the spiking) – and is withholding that information from the intoxicated person, then that creates a power imbalance between the two. And power imbalances are definitely one of the factors that are involved in determining whether there was consent (though, of course, not all power imbalances equal rape, either. But it’s another thing to consider). And this power balance is definitely made worse by the fact that the victim is not aware that it exists.
The more complex case, of course, is when party A spikes the drink and then party B, unaware of the fact that the drink has been spiked, proceeds to have sex with the intoxicated person. In that case, just as in the case of any drunk sex, the details are crucial and each incident needs to be evaluated on a case-by-case basis. But as I do believe that being intoxicated without being aware of it does put someone at a disadvantage compared to if they had chosen to become intoxicated, then I believe that the equation is potentially different in this case as well – though I agree with you it is not categorically so.
I think so. Then we have established mens rea and even though the drunk person was still able to do so when they gave consent to the person spiking their drink I’d say we have something akin to a rape attempt. At first it kind of sound ridiculous and I am pretty sure it’s going to be next to impossible to prosecute as such, but considering that for instance the NCVS categorize verbal threats of rape as rape attempts I don’t find it that peculiar to definitionally consider spiking someone drink without them knowing for the purpose of lowering/elliminating their ability to provide valid consent (or rather their ability to withold consent) as a rape attempt.
Tamen, but I’m not talking about attempted sexual assault or mens rea; I’m talking about the question of whether a drunk person is capable of giving consent.
Why would a drunk person not be capable of giving consent? I agree drunk people are not always mentally as up to par as sober people, I just don’t see how those impairments remotely effect consent.
Alcohol does not impair moral judgement, does not corrupt the virtuous, and does not cause people to be unable to control their behaviour. These are religiously inspired myths. The last is actively harmful as it enables alcoholics and the anti-social to excuse deliberate actions.
The main effects of alcohol regarding sex are the entirely cultural one that alcohol is a license to misbehave, and that it impairs memory formation so people can’t always recall their own volition.
The other effects of alcohol are incapacitation from unconsciousness and delirium. In these cases intoxication laws are very useful as an evidential shortcut and to prevent perverse jury verdicts. Then there are effects like reduced attention span and concentration, dizziness, sedation and impaired reaction. They certainly mentally impair people, but none of these even remotely chemically influence people to have sex.
I should add in this context I think the phrase “unable to… stop it from happening because they were drunk” in the question is worrying.
I know they mean it in the sense “unable to stop being knifed/falling down the stairs/falling asleep because I was drunk”. But there a long history of alcohol myths where it’s used in the sense of “unable to stop hitting him/betting on the horses/sleeping with your sister because I was drunk”
Abbe, I think I understand your concern but I’m not sure how one can reach that concern without overlooking or eliding quite a bit of (cultural as well as textual) context. Only in strawman arguments in comments of feminist blogs have I seen “too drunk to consent” used to mean “at the level of drunkenness where one makes bad decisions” rather than “blacking out.” If someone is too drunk, neurologically, to understand or evaluate what is going on around them, I’m hesitant to defend taking their slurred mumblings of consent at face value; the Alaska law quoted upthread implies nothing about spiritual corruption.
Or, for example, there’s no Calvinist cultural image of “demon Rohypnol.”
I don’t think you do understand my concern. “Blacking out” is alcohol preventing memory formation. It has nothing to do with reasoning or consciousness. You can be black out drunk and still functioning, just as you can be amnesic and still function.
So, Abbe, let me understand – are you claiming that Alcohol never causes people to lose consciousness or lose the ability to function to such a degree that any coherent decision making is impossible? Or are you simply stating that a “black out” is not evidence of an unreasoning state?
By your earlier posts, I assume you mean the latter, but I’m not sure what the relevance of that is to the discussion above.
Functionally, not much.
A given level of impairment is what it is, regardless of how you got there.
There is probably some added problems caused by the “unknown impairment” but that would be hard to quantify.
Nonetheless it would be reasonable to treat things differently IMO, largely as a legal deterrent: Involuntary intoxication makes consent invalid. Therefore, if you slip someone some ___, and subsequently rape them, you lose your ability to use the “but she consented” defense. IOW, you better be damn sure that she’s not going to bring charges.
IMO that legal analysis should be true even if the victim isn’t really very drunk, because it helps protect rape victims, helps protect against the high-social-cost crime of drugging people without their consent, and is most protective against the “drug and rape” assailants.
Things are much more complex when the drugger and the rapist are different (and unrelated–i.e. not accomplices.) In that circumstance I do not think it makes sense to carve out legal distinctions, because the required culpability is different. Drugging someone and raping them are two different crimes.
The relevence is Hershele claims I am reaching and the only people who would disagree with me are strawmen. He thinks people are only really concerned with intoxication as severe as blacking out, which he confuses with incapacitating delirium.
But black out is anmesia, and is less severe than delirium, which demonstrates there are people (him for one) who think the line should be drawn short of incapacitation and that I’m not overlooking or eliding anything.
There are certainly people who would draw the line short of incapacitation – I’m such a person. Unlike you, I believe that there is sufficient evidence – rather than moral posturing – that moderate-high levels of alcohol can affect decision making in a way that is a factor in determining consent. This isn’t about moral corruption – it’s about confusion and being able to understand what it is you are agreeing to do, as well as having the ability to communicate what it is you agree to and what it is you fail to agree to in an effective manner.
Which isn’t to say that it’s not possible to consent to sex while drunk – it definitely is. But I do believe that it is a complicating factor before the stages where it is actually impossible to consent – delirium and/or unconciousness – begin.
Abbe @ 50
I’d say conflates rather than confuses, but I’ll cop to that, fine. As to the rest, yes, I do think that, because I’ve been in these discussions before (including here), and I’ve never seen anyone actually advance the argument that someone who is a little buzzed is incapable of consent.
Your Calvinist hypothesis is an entirely coherent and plausible explanation of something I have never actually witnessed from the people to whom you attribute it.
Ampersand: We cross-posted and I missed this:
I know that they had enough data for the male/female proportion for the 1.4% of men who had reported ever having been raped. I don’t know for certain that they had enough data for the 1.1% men who reported being made to penetrate in the last 12 months to report a statistically significant gender proportion of perpetrators, but 1.4 and 1.1 is close enough that I don’t think it’s completely unfeasible that they did.
If you recalled correctly and remember where it was from could you point me to where CDC have said that the gender proportion for perpetrators reported by men made to penetrate in the last 12 months were statistically insignificant I’d appreciate that.
I don’t recall where exactly I saw that two months ago, if it isn’t in the report itself. And I’m simply too busy with work to undertake figuring it out now.
I am sorry – I usually try to be very willing to back up factual claims I make – but the tabs I had open, and the reading that was fresh in my mind, are gone now. If I run across it again, and remember this thread, I’ll come back and post a comment.
I’ve no problem understanding why you can’t recall on the top of your head after 2 months. I am pretty sure that I haven’t seen it explicitly stated that the gender proportion of perpetrators reported by men made to penetrate in the last 12 months were statistically insignificant so I was curious as to where you’ve seen it and also because you hedged with a IIRC.
I am also 99.999% sure that it’s not in the report itself. The only remaining place I can think of then is the letters from CDC published by Futrelle or /r/AMR or in the correspondence between CDC and a AVfM member who’ve sent a FOIA asking for the NISVS data. I’ll reread those to see if I have missed it the first time around. If it’s not there I’ll probably think you didn’t recall correctly.
As a side note a researcher on the NISVS have stated on the phone (there is a recording) that NISVS definitions of rape and made to penetrate are in line with CDC’s universal definitions of sexual violence. They are not as the definition of rape in their universal definitions of sexual violence do not differentiate between penetrating and being penetrated. Their universal definitions of sexual violence can be traced back to 2002 so it predates the NISVS 2010.
I have now checked where I thought it could be so presumably you recall it from somewhere else if your recollection is correct.
It’s not stated in CDC’s reply to the FOIA request: https://docs.google.com/file/d/0B-ELQhEQCrUFQl9ySkM3X1ZhUlE/edit nor in that blogger’s account of her voice communications with CDC: http://www.breakingtheglasses.blogspot.no/2013/12/foia-update-sorry-for-cliffhanger.html#.U0uMale2Kug
It’s not stated in CDC’s reply to David Futrelle publisehd on manboobz:
http://manboobz.com/2013/10/29/cdc-mra-claims-that-40-of-rapists-are-women-are-based-on-bad-math-and-misuse-of-our-data/comment-page-1/
Nor is it stated in CDC’s reply to some Reddit user published in /r/AgainstMensRights (although this one contained an embarassing mistake from the CDC where they reported their own “last 12 months” numbers for men reporting being made to penetrate as lifetime numbers:
http://www.reddit.com/r/againstmensrights/comments/1lq3n3/cdc_responds_are_40_of_rapists_women/
I also haven’t found any mention of the gender proportion of perpetrators for victimizations in the last 12 months in the NISVS 2010 Report itself.