This issue seems to cycle in and out of the public consciousness, maybe in response to a stupid comment by a politician (remember Todd Akin?), or a heated debate between blogs as summarized in this Slate XX blog entry.
Those debates, which I can remember having in a course on the philosophy of sex and love in college, only permit black-and-white answers like “no means no” when they aren’t about real situations with the blurry and contradictory facts that come out of real rape cases.
Saying that ‘no’ means ‘no’ isn’t much help when the dispute is over whether the nominal victim actually said no, or whether the nominal defendant understood it.. When two drunk college students at a party have sex, and afterward one of them says it was rape, how does anyone know what happened? Maybe one forced the other. Maybe it was mutual for a while, and then one didn’t want to participate but didn’t communicate it clearly. Maybe one or both of them blacked out, so the memory record is even less reliable than we would expect of two drunk college students. Maybe one of them hadn’t planned to have sex, and would prefer not to have had sex, and so decides or imagines or believes it was rape, but doesn’t really know or remember.
It’s easiest to imagine that this is between a man and a woman, and that even if they were both drunk the man was the wrongdoer. I know that my own visceral reaction changes a lot by changing the ages and genders of the participants. A prosecutor is a lot more likely to seek an indictment if the nominal victim is younger and female, but I am working on a case where it looks to me like my underage male client was the victim of a rape committed by an older woman. If all the participants are at least eighteen, there is no difference in the statutes based on the genders or ages of the participants, but I’ve never heard of a case where an eighteen-year-old woman was prosecuted for raping a forty-year-old man, however drunk he had to be before he could find the guts to hire a prostitute.
Of course ‘no’ means ‘no.’ But, when we’re talking about a criminal prosecution, that has to be a ‘no’ at the time of the sex. It doesn’t count when the ‘no’ is in the form of a resolution before going to the party not to do that again, or a resolution afterward that it never should have happened. The ‘no’ has to be communicated by the nominal victim to the nominal defendant. Oregon has a lot of different sex crimes, but generally they cannot be committed accidentally; the defendant has to intend to commit the crime or know the facts that make it a crime, such as the lack of consent. Finally, those facts have to be provable in court now. It’s not a crime if the victim thinks that she (or he, but usually she) never would have slept with that jerk. It’s not a crime if the victim’s best friend insists that the defendant must have taken advantage of the victim when she was drunk. It’s probably not even a crime if the victim was so drunk she doesn’t remember what happened (but if the victim was extremely drunk at the time she had sex with the defendant, and the defendant was much less drunk, and knew of the victim’s mental incapacity, that’s rape.) Exactly how drunk the victim has to be, and what happens when the defendant and victim are both drunk, is unsettled under Oregon law, but it’s a pretty safe bet that an older male partner is at a lot more risk of prosecution than a younger female even if the male was more intoxicated.
I’m not talking here about morality. In a perfect world, and maybe even in ours, morality and criminal law overlap, but confusing one for the other leads to witch trials. Whether the older or less-drunk party to sexual activity can be prosecuted is not the same question as whether the less-drunk party should be invited to the next party or should be shunned in civilized company.
