By David R. Jones, Partner
In February of 2020 and in December of 2022, disgraced former film producer Harvey Weinstein was sentenced to a combined 39 years in prison after being convicted on rape and sexual assault charges. Weinstein’s trial came nearly three years after the rise of the #MeToo movement. Weinstein’s accusers, young women at the time of the allegations, sparked this movement in an effort to bring issues of sexual harassment and sexual assault to the forefront of cultural scrutiny.
While many Americans believe #MeToo has achieved great success in increasing the likelihood that people accused of sexual harassment are held accountable, the negative implications of this movement never gain any widespread publicity.
I’m writing this article to shine a light on one of those negative implications. This article is not for every person, but every person should read it – especially every young person. In the words of John Lewis, “when you see something, say something.” I share with you what I’ve seen over the past 25 years of being a criminal defense attorney in Colorado. And what I see is the routine prosecution and conviction of men who are innocent of the crime of rape. It is happening to a lot of young men who are inexperienced with both sexual interactions and alcohol. Culturally speaking, the rise of dating apps merely for hookups and the increase in underage drinking has played a part in this phenomenon.
This article asks you to consider this one question about drunk sex; if a young man and a young woman meet, get drunk at a local bar, go home to either of their residences, and have sex while they are both intoxicated but while they are both active and willing participants – was anyone raped? Your local prosecutor’s answer to this question these days is yes, but only the woman and never the man.
A common scenario that comes through in these sexual assault cases, is a woman calling the police the next morning after having drunk sex with stranger. If your local prosecutor thinks, based on the woman’s description of the event, that she was too drunk to give her consent, then the man is charged with rape. This will happen even if the woman can’t remember what she did or what happened the night before. Her lack of memory is usually not a problem for the prosecutor and will be used as evidence to show that she really was too drunk too consent.
Before going into the defense of drunk sex, let me please eliminate from discussion, actual cases of rape. I am not talking about rape. I’m not talking about forced sexual contact. I’m not talking about the guy who breaks in a window and rapes a woman. I’m not talking about a situation where a man continues sexual contact/intercourse after being told “no” or after being fought off. I’m also not talking about a situation where a man continues sexual contact/intercourse knowing the woman is passed out or unconscious. All of those scenarios are rape and the men committing those offenses deserve to be charged with rape. I’m only talking about a scenario where both parties were drunk and both parties knew what they were doing at the time even though one or both of them may not remember too much of it later.
You see there is a big difference between being blacked-out and being passed-out. Experts in the fields of toxicology and psychology will tell you that when a person is passed-out, they are unconscious and unaware of their surroundings and unable to give consent. If a woman is being subjected to sexual contact when she is passed out, that is rape. However, when a person is blacked-out from alcohol, they are no longer downloading memories of things that are actually happening and of things they are actually doing. When they wake in the morning, they have little to no memory of what they did the night before. However, at the time, these people are conscious, awake and aware of their surroundings. A blacked-out person is able to have conversations, eat food, drive cars and yes . . . have sex. A blacked-out woman can have active participatory and verbally approving sex with a man and not remember any of it the next day. But if that woman makes a report of rape at a later time because she believes she was too drunk to consent, then it will not matter that the man recalls an active participant who was verbally approving, he will be charged with rape and possibly convicted.
When a prosecutor decides to file a charge of sexual assault based on a woman’s level of intoxication, they will normally file more than one count, alleging two different theories. Colorado’s sexual assault statutes allow the prosecution to charge sexual assault under the theory that the woman was so intoxicated that she was “incapable of appraising the nature of the her conduct” and, this is important, the man charged knew or was aware of her condition but engaged in sexual contact/intercourse anyway. The second theory the prosecution will commonly charge in these scenarios is alleging the woman was “incapacitated” or “unconscious” and that the man was aware of her unconsciousness but engaged in sexual contact/intercourse anyway. This leaves them with two ways to argue for guilt saying to the jury that the woman was either passed out and he knew it or she was so intoxicated that she didn’t know what she was doing, and he knew it.
The highly intoxicated woman who actively participates in sex with a man is not rape victim. In order to prove sexual assault, the prosecution has to show she was so intoxicated that she didn’t understand the general nature of what she was doing at the time. While a drunk woman who has sex with a man may not remember the sex she had the next day, it does not mean she didn’t know what she was doing at the time. In order to prove sexual assault via intoxication, the prosecution also has to prove that the man knew the woman was unable to appreciate the nature of their conduct due to intoxication. When a woman is an active and verbal participant in drunk sex, the man is left with the obvious impression that all is good.
The distinction to be made here is that a very drunk person usually knows what they are doing at the time. It is not rape just because a woman doesn’t remember what she did the night before. But the cavalry will come running to treat a woman as a rape victim if she claims she was too drunk to know what she was doing and therefore did not consent. Men never get this kind of presumption of innocence for being drunk. Do we ever give a man a break for his actions while being drunk, really . . . ever? If a man gets caught having an affair, can he ever successfully plead a case to his wife that he was just really hammered? Does that ever work? When a young man is prosecuted for robbing a liquor store, does, “I was really drunk and didn’t know what I was doing” really work? I can tell you, in the court room, intoxication is of little benefit to the accused and considered in very limited situations and even in those limited situations, it is never allowed as complete excuse for the crime. Drunk gets a man nowhere fast. Almost always, he makes bad decisions and is never forgiven for his drunken behavior.
To put a finer point on this, if a man goes out and gets drunk but wakes up with a sore penis and little recollection of what happened, nobody is coming to investigate him as a rape victim if he calls the police. Ask any man you know. Have you ever been so drunk that you woke up knowing that you had sex but remembered little else? I think you will find that many, but not all men have had the experience of not remembering the consensual sex they had due to intoxication at some point in their lives. The real legal truth in the modern “me too” world, is that if any man calls the police to report being raped because they had sex and can’t remember anything about it, he would be laughed off the 911 line. Those cases don’t exist, a dare you to find one. (LGBTQ community excluded; prosecutors will prosecute same sex rape cases, but they will never prosecute the woman in a hetero-sexual encounter.)
What a completely different scenario when it comes to a drunk woman. She often can plead, “I was hammered” to her husband and be labeled a victim. And, if she calls the police to claim she was too drunk too consent, the system will bend heaven and earth to label her the victim. This is a place where equality between the sexes is non-existent. If a woman wakes up with a hangover and a vague recollection of having sex with a stranger and that stranger has already left without saying good-bye or buying breakfast or having sober sex in the morning, then he is very likely to become accused of rape if that scared and confused young woman calls the police. This is the current reality.
Oh, but you ask, “certainly a young man cannot be prosecuted on the word and testimony of woman who was admittedly very drunk at the time?” To that, I say to you, this is exactly the way these cases are prosecuted and how many young men get convicted, living the rest of their lives either in the community or in the prison system as sex offenders. Realistically, being labeled a sex offender is the most hated status a person can hold in modern American society. People would rather be called a murderer. So the downside to the accused cannot be greater and the consequences for a young man losing his innocence and being labeled a sex offender for the rest of his life cannot be more dire and tragic.
Please understand again, I am not talking about real rape with real rape victims. “No” does mean no, but as a talented colleague of mine told a jury one afternoon, “No does mean No, but you have to say it!”. Men cannot read minds. If they are drunk and they are interacting with another drunk who is actively participating and saying yes with every awake and conscious move she makes, he is not acting with an intent to rape. Rape only exists if the man, always the accused, engages in sexual contact with a woman KNOWING she does not consent.
I’ve coined the term “rapeology” to describe the pervasive and obvious misinformation and flawed teachings surrounding sexual assault. Modern day “#MeToo” movement rapeology is teaching a woman that if she gets drunk and does something stupid with a man, she can take it back and say she was too drunk to know what she was doing. Maybe her girlfriends from the sorority saw her getting drunk and leaving with a guy and she later needs to save her reputation. Or maybe her husband or boyfriend caught her and her only way out is to say, “he did it to me”; I was too drunk to consent, I was raped. These motives are real and occur in real life. I think in many of these scenarios the woman is not intentionally lying to bury a man. She just truly doesn’t remember much and modern “me too” rapeology is teaching her that all regrettable drunk sex is rape.
Public Universities and other rape prevention organizations, actively misteach rapeology. For instance, on the University of Tulsa’s Sexual Violence Prevention page, the University offers guidance that “an intoxicated person cannot give consent” and “a person cannot give consent if they are under the influence of alcohol or drugs. This includes someone who is passed out. Engaging in sexual activities, including having sex, with a person who is heavily intoxicated is a violation of the TU Sexual Violence Policy and is illegal under Oklahoma law.” These statements are absolutely not consistent with the law of consent. A heavily intoxicated person can and does consent to sex all the time. Drunk sex is not a crime.
The University of Denver seems to also take the overbroad and illegal statement of consent when it comes to intoxication. Their student policy manual contains the statement, “consent can’t be legally given by a person who is intoxicated. If you’re too drunk to make decisions and communicate with your partner, you’re too drunk to consent”. Shame on the Universities of Denver and Tulsa for this misteaching and blatant encouragement for women to make false sexual assault claims when they want to take back their own drunken behavior.
According to the University of Tulsa and many other universities across the nation, any drunk sex is illegal. However, common-sense and maybe prior experience would tell us that many college students engage in intercourse while being intoxicated. For that matter, a lot of adults do too. Most of these instances go unreported. However, modern day rapeology is teaching a woman that she has an out if she has drunk sex and regrets her behavior…or her friends judge her…or she is worried about what her parents might think…etc. The woman in this scenario gets to save her reputation while her equally drunk sex partner goes down as a sex offender. More misteachings in rapeology can be found at Colorado State University where they state in their Sexual Assault and Violence Prevention polices that “consent is a sober decision- if you are under the influence of drugs and/or alcohol to the extent you cannot make a decision, then legally you cannot give consent”. Really CSU? A heavily intoxicated person makes decisions all the time. Not necessarily good ones, but they make decisions to drive, to drink more, to fight and yes to have sex. Are we willing to say that a drunk person cannot be held responsible of their drunk decisions across the board because, well they were drunk? Absolutely not. These polices from Denver, Tulsa and CSU are stating that all drunk sex is rape. This is not the law. These absurd policy statements, are strikingly similar to the misguided toxicologist I once interviewed who was planning to testify for the prosecution in a rape trial where she said, “if a woman is too drunk to drive a car, she is too drunk to consent to sex”. This misinformation and new wave rapeology has to stop. It has to stop in the law and in the polices being set forth by universities that seek to condemn all intoxicated sexual interactions. These misstatements and misteaching(s) of rapeology are ruining the lives of many young men. The fact is, drunk sex is not rape. Drunk sex is common. Whether you’ve never done it drunk, have done it drunk, will do it drunk, or do it drunk all the time; drunk sex is not a crime and women shouldn’t be taught that drunk sex is rape.
A more accurate and fair statement of when intoxicated sex becomes rape can be found in the policies set forth by Dartmouth College in their Student Resource manual where they say, “you can have sex while drunk (great, someone had to say it) you just can’t have sex when one of the participants is incapacitated”. This policy statement more accurately states the law of consent and the impact of intoxication. The Dartmouth policy goes further to provide examples of incapacitation including the inability to speak, confusion on basic facts (day of the week, birthdate, etc.), inability to walk unassisted or passing out.
These wrongfully prosecuted rape cases are especially insidious because, between the drunk man and the drunk woman, it is hard to find a true villain. On one side, you have a young man who remembers every sensual detail and who thinks he had the night of his life. On the other side, you have a young woman who wakes up feeling taken advantaged of and feeling fear about what happened because she has a blacked-out memory. There are many women who chalk that up as a bad night and something to regret. But unfortunately, there are many more who will pick up the phone, speak to a police officer (usually male detective) who is all too willing to help the woman look through her Tinder profile to identify the culprit. After that, there is a willing prosecutor who will then charge the case not matter what the man says. The woman in these too drunk to consent cases, is often no intentionally lying about anything. She just has no memory and is probably just young, inexperienced and scared. In many cases, these women regret so much about what they did that they are all too willing to allow those teaching rapeology to fill in the blanks.
It can be fairly said that when two people get drunk and have sex and one wakes up feeling like they were raped because they got so drunk they don’t remember what they did, drunk sex has gone wrong. But it still begs the question, why is it always the man who is left bearing all the blame? I suppose many feel at ease with blaming the man, because men are expected to be the protectors, the ones in control, chivalrous and gentlemanly. So, if drunk sex goes wrong, it’s on them. While it is always a good idea for a man to be a gentleman, placing the blame for drunk sex entirely on the man in these situations to the point of holding them legally responsible, is wrong. The drunk woman should at least share the blame for her own drunken behavior and decisions.
I suppose another reason for this bias of charging only the men, could be found in the anatomical realities and logistics of heterosexual intercourse; one person has an inny and one has an outty. The person with the outty is maybe easier presumed the culprit because they are directing a thing into something else. This is also a ludicrous basis upon which to apportion blame because anyone with an outty knows, it can perform without any direction from the conductor. Outties can perform while a man is unconscious and even for no reason at all and they can certainly perform, often not their best, while the conductor is intoxicated. So, the fact that an outty is going into an inny with success should not cause more intentionality, purpose or even consciousness to be attributed to the man any more than the woman. And if the behavior of the inny or outty is relevant, then what do we make of the cooperating fluids produced by the inny to accommodate intercourse. If the conductor of the inny is smashed but also consciously directing her body in a way that causes or assists intercourse, then isn’t she as responsible for the conduct of her inny as he is his outty? Anatomy does not provide a logical reason for charging the drunk man with rape and never the drunk woman.
Some may be saying, what about the medical exam and evidence of tearing or damage to the inney. There are many studies and articles out there that discuss the unreliability of this evidence to prove that sex was without consent. The medical examiner will always testify under oath that all they can say is that the presence of a tear or other microscopic abrasions does not prove the lack of a woman’s consent. They can only say these injuries are “consistent with nonconsensual sex”. When pressed, they will all admit that the injures they observed (if minor, and they usually are) could have also been caused by “consensual sex”. You may be asking, so what is the point of this so-called expert testimony? Nothing, it doesn’t prove a thing, but judges let it in all the time at the request of the prosecution because, there is nothing people love to hate more than sexual assault cases.
The misteaching’s of rapeology and the over prosecution of these too-drunk-too-consent cases need to stop. Young men are losing the entire futures because universities and/or employers are all too eager to presume guilt in the post me-too climate. These prosecution’s should be reserved for real cases of rape and should not be used to cleanse a woman’s regret or disdain for her own drunken behavior. Women just like men, need to be held responsible for their own drunken behavior. If a woman gets drunk and jumps on a man, she is just as responsible for her drunken conduct as she would be if she got behind the wheel an killed a family of four. In both cases, she knew what she was doing at the time. Jimmy Buffett, may he rest in peace, did not write a song in support of felony sexual assault when wrote, “let’s get drunk and screw. Drunk sex is not a crime.