Is "Incapacitated Rape" Really Rape?

Source: Liz Swan

When you google “rape on college campuses,” you get over half a million hits in a half-second. That’s disheartening. And most publications tend to agree on the statistic that about 1 in 5 women will be victims of rape while in college. This is staggering. How could this be?

Rape is defined (generally speaking, and this varies depending on the publication) as sexual activity forced on someone against his or her will. So if a strange man accosts a woman in an elevator, pulls out a gun, and forces himself on her sexually—clearly, that’s rape. If a woman slips a drug into her date’s drink, renders him stupid, and forces him to have sex with her—clearly, that’s rape.

But what about a college woman who voluntarily drinks herself into an alcohol-induced blackout at a party, but is still talking, dancing, seemingly having a good time, and winds up having sex late-night with someone she either knows or doesn’t know. Is it rape? It’s not so clear. Here’s why: according to pact5.org, “A person who is mentally or physically incapacitated by drugs or alcohol cannot give consent.” Um, of course, they can. People can form words when they're drunk and even when they're blacked out drunk (note: not passed out drunk) and that's all that verbal consent is—words.

That’s the whole problem with blackouts—you don’t have any idea what you said or didn’t say. You don’t know how you wound up in this stranger’s bed or made it back to your own bed. You don’t remember anything. Is it conceivable that you gave consent in your drunken stupor? Of course, it is. And to claim after the fact that a "rape" was committed in a situation like this is at best problematic, and at worst, wrong.

Why? Because it’s conceivable that you gave consent in your blackout, and your sex partner didn’t know you were blacked out and took you at your word. WebMD has an entry on blackouts caused by drugs and alcohol, and it says, “During a blackout, you may function normally. People around you may not notice anything different about your behavior. You might do the things you normally do, such as eat dinner, wash dishes, or watch television. But later you have no memory of doing them.”

So, in the hypothetical scenario above, if the woman gave consent, and it seemed genuine on the part of her sex partner, then it’s not rape, because it doesn’t fit the definition of having sexual activity forced upon her against her will.

Important to note is that this scenario is not meant to describe all rapes on college campuses. It depicts a very specific scenario where regrettable sexual activity occurs due to alcohol abuse. But even if it accurately describes one “rape” case on one college campus in the U.S., then it deserves serious consideration, because we need to be clear on exactly what counts as rape for the benefit of all parties involved.