Sex Discrimination and Rape

In my last post, I noted some of the procedural problems with university procedures concerning charges of rape on campus. In this post, I want to discuss the inequality as to standards for rape at universities. Consider this testimony about rape rules from a high official at Duke. If an individual is intoxicated, they are thought not to have the ability to consent to sex:

McLeod’s lawyer asked Wasiolek [the Duke official] what happened if both students were drunk. In that case, presumably, “they have raped each other and are subject to expulsion.” Not so, stated Wasiolek: “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” How this policy can be reconciled with Title IX must remain a mystery.

I have often wondered about exactly this issue. Is there any defense of this policy? It seems hard to justify. As the quote above indicates, it seems blatantly inconsistent with equality between the sexes.

One of my colleagues attempted to defend this rule. He argued that if the man is the initiator – as they usually are in our culture – then this rule will be defensible because it is no defense to rape that the rapist was intoxicated. While this is an inventive argument, there are several problems with it. First, this argument merely shows that the initiator should be held responsible. The male may usually initiate, but he does not always do so. Thus, it does not justify categorically holding the man responsible and the women free of responsibility.

Second, if there was a violent rape, I could agree with holding the initiator of the violence responsible. Certainly someone should not be permitted to get drunk and rape someone with impunity. But does the same argument apply to someone who engages in what would ordinarily be consensual sex when the other person happens to be intoxicated? I do not think so. Violenting forcing someone to have sex is an obvious and serious wrong. Failing to notice someone was intoxicated is not on the same level.

In our culture, men are often the initiators. But they initiate with signals from women. If there are no signals and the man engages in an unwelcome initiation, the women usually stops him immediately before a second kiss or touch can happen. If there is a positive response or signal from the woman, then the man continues. If at any stage the women signals no, the man is supposed to stop. Thus, the man is initiating, but the women is engaged in the process as well. There is no reason to focus on the man exclusively even if he was the initiator. Both sexes have their parts in this dance.

When sex occurs without adequate consent due to intoxication, this is a problem and the question is how to address it. One possibility is to say that the people who become intoxicated are at fault and it is tough luck on them. While Duke seems to be saying this about men, one could say it about women – they simply should not have become intoxicated. But neither rule seems desirable. Instead, we should recognize the fault of the intoxicated person but also attempt to place limits on people who interact with the intoxicated person. So if A is sober and B is significantly intoxicated, then A might be found to have engaged in wrongful behavior if A could reasonably determine that B was intoxicated.

In this situation, one would hold A responsible, even if A were the women and B were the male initiator. Thus, if B was significantly intoxicated, initiated with A, and A consented, then she should be held responsible, because she knew that A could not consent.

If both A and B were intoxicated, things are more complicated. One might apply the same reasonableness standard or one might apply a lower standard to both persons (such as a reasonable intoxicated person). But in either case, the standard would apply equally to the man and the woman.

But whatever standard one applied, if a person (presumably the women) were passed out, then someone who engaged in sex with that person would violate the rule even if they were intoxicated. Anyone can distinguish between a conscious and unconscious person. But that is very different than two people who are intoxicated having sex or one person having sex with a second, where the latter appears to have had some drinks, but does not appear so intoxicated as not to be able to consent.

In the end, there are tough questions in this area. But it is an easy call to reject the position articulated by Duke.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    Is it the Germans who say, “The man proposes and the woman disposes.” This may be applicable in some of your examples. The problem nowadays seems to be the retraction of the ‘disposal” – or put another way, – the disposal of the proposer.

  2. Richard S says

    “In our culture, men are often the initiators.” And here we probably have one of the ideas at the heart of the problem here. As Gabe implies, this patterns is probably not merely cultural. It probably has biological roots. But our laws, and our culture, have no place for the possibility that human nature shapes the general pattterns of social life.

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