I never thought I’d write an article under that title but here goes.
Earlier this week, Dr. Phil asked over Twitter: “If a girl is drunk, is it alright to have sex with her?” The Twittersphere overwhelmingly answered “No,” calling Dr. Phil a “moron,” “asshole” and “rape apologist,” among other things. I don’t doubt the possibility that Dr. Phil (or whichever lackey mans his Twitter account) may have posed that question for lecherous or self-serving reasons. Yet as a feminist, this reaction left me honestly dismayed. Were we saying that a drunk girl can never consent to sex? That sex with someone who’s been drinking is always, necessarily, rape? Sure, Dr. Phil’s a total butthead, but I don’t think we want to make the argument that drunk sex necessarily means rape, do we?
And yet this is the exact argument being made by Carmen Rios, a former college sexual assault activist, who was so “shocked and appalled” that Dr. Phil (whose real name is Phil McGraw) had asked such a question that she started a Change.org petition encouraging supporters to call on McGraw to host a show educating his viewers on assault prevention. “Lesson 101 in my courses,” says Rios, “was that sexual contact without verbal, sober, conscious consent is rape.”
But, it’s not — not legally speaking, and not in practice.
Enthusiastic consent — the practice of securing verbal consent, step-by-step, prior to engaging in any given sex act — is not the norm, and sexual encounters under the the influence of alcohol are a common occurrence. (In a University of Illinois study, for example, 65 percent of participants reported alcohol or drugs being involved in their more recent casual sex encounter.) Whereas the exact legal definition of rape differs by state (and, in fact, some states are using more broad-based terms like sexual abuse, sexual assault, and criminal sexual conduct to include a wider stretch of unlawful acts), and whereas people must have the capacity to consent— and those with diminished capacity (such as people with disabilities, some elderly people and people who have been drugged or are unconscious — which, to be sure, can include the very drunk) may not have the legal ability to agree to have sex— in no state is it criminal to have sex with someone who is simply under the influence of alcohol. Therefore, Rios’ definition of rape is inaccurate.
Of course, people besides Dr. Phil have initiated nuanced conversations about consent, sometimes with similarly dismaying results. When The Frisky’s own Jessica Wakeman advocated for anti-sexual violence activism to address underage binge drinking culture more directly after an anti-rape PSA was accused of victim blaming, she was accused of “woman hating” and victim blaming on the blog Feministe. Political commentator Keli Goff was named in the same article for her thoughtful essay exploring the connection between alcohol and rape. After a provocative scene last season, bloggers like Amanda Hess at Slate’s XX Factor dared to ask, “Was that a rape scene in ‘Girls’”? In response to the same episode, Anna March penned a piece for Salon on women’s sexual agency, an essay described on one reaction blog as “utterly vile.”
As a blogger, I have devoted much time to exploring issues related to sexual violence and consent. Prior to working full-time as a writer, I worked as rape crisis counselor and was an artistic consultant for the NY Alliance Against Sexual Assault. I also attended Antioch College, infamous for its Sexual Offense Prevention Policy, which attempts to institutionalize enthusiastic consent. Like Rios, I am a sexual assault activist. I’m also a human being who’s had a whole lot of sex. I live in a world where some people do not explicitly verbalize consent every time they engage in sexual activity, where people drink alcohol, and where “not sober” is a far cry from the legal definition of “incapacitated.” Consent is simultaneously a personal, ethical, and social issue. Conversations about sexual violence and consent, like these issue themselves, can — and sometimes necessarily should — be complicated.
There was an essay on The Good Men Project some time ago called “I’d Rather Risk Rape Than Quit Partying.” The narrator thought back to sexual experiences he’s had when he and his partners had been drinking and considers, retrospectively, which ones were consensual and which ones might not have been— how some, he says, might have been rape. The piece was so controversial that the website published not one but two notes at the top of it defending its existence. And yet, as uncomfortable as it was to read, the essay got me thinking about my own conduct when I was still drinking (I’m six years sober in a program of recovery). When I thought back to all the sexual encounters I had while drunk, in retrospect, some of them … enthusiastic consent was in the gray area. There were times I had sex when I was ambivalent about doing so and/or simply too drunk to make a deliberate choice. I also realize in retrospect that I’ve had sex with people who were probably ambivalent about the encounter themselves, and that may have felt pressured into doing it. Eesh. And there were also a ton of times that I had drunken sex because I clearly wanted to, and the other person clearly wanted to, and it was clearly enthusiastically consensual sex.
How to decide when sex under the influence is or is not consensual is a bigger, nuanced conversation we as a society need to have. For now, we must allow for the fact that sex while drinking does not automatically equate to rape. And just as important is that talking about issues of substance use, sex and consent do not automatically make you an asshole. It is frustrating to see these conversations get shut down entirely rather than have uncomfortable conversations that will help women and men navigate sexuality and substances. More people should be having more conversations about sexual violence and consent, not less. While I hate to defend the dude, Dr. Phil was not wrong, in and of itself, for starting one.
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