No sex please, we're drunk: rape ancient and modern

If it wasn’t such an important subject, it would be hard to take seriously the government’s  plans for raising the conviction rate in rape trials. One idea is that a woman should be deemed incapable of having giving consent if she was very drunk: in other words, all sex after binge-drinking would count as rape.

This is bonkers. Like many women I have my own rape story (and please read it before you post to say that I am not treating violence against women with due concern). But the idea that drunkenness and consent can be policed in this way, as judges have already pointed out, makes no sense at all.

It is not simply that a rough, unscientific survey suggests that most sex in this country takes place under the influence of alcohol. (Clive James has a bit to say on Kingsley Amis’ s drunken couplings in the coming issue of the TLS.) I actually went so far as to wonder whether the new proposals were not what they seemed, but rather were a cunning way of reducing teenage pregnancies or AIDS – or had been dreamt up by the manufacturers of breathalysers.

But more important is the obvious fact that a witness-less crime, where guilt is often to be determined more by motivation and will, rather than by any physical evidence, is almost impossible to adjudicate. That is to say, no one contests that they had sex; the question is whether she wanted to, or whether he reasonably thought that she did. These are difficulties that were brilliantly highlighted in the recent Channel 4 drama-doc, “Consent” where we saw the tricky deliberations of a jury coming to a Not Guilty verdict – followed by a final flashback which proved just how wrong they were.

The jury’s dilemma is not going to be helped by a series of tick-box rules, which in any case don’t match up to most people’s everyday experience. Why is no-one saying that it would be better to stop men having non-consensual sex in the first place rather than invent hopelessly ingenious ways of trying to convict them when they do?  To be fair, a government-sponsored advertising campaign,  aimed at men, might be moving a little way in that direction (though the "no entry" sign stamped on the woman's pants still suggests that the main reason you might not have sex with her is simply that you might find yourself in the dock if you did).

The real challenge, to take my own case, is how to stop men thinking that it is still on the margins of acceptability to pick up an exhausted student on Milan railway station, buy her a bed in a Wagon Lit, and then have (unwanted) sex with her on the way to Rome. Prosecution isn’t the only point.

Regular readers of this blog will now be expecting the ancient angle on all this. In fact the ancient debates were almost as complicated as our own, though concerned with rather different issues.

It is often said that in Athens, at least, the idea of women’s consent played no part in the control of sexual violence. That is true in the sense that the attitude of the woman’s guardian was what seems to have counted: even heterosexual rape in Athens was an issue between men. Some Athenians could even claim that seduction was worse than rape – in the sense that seducers actually won over the mind of the woman (another man’s property) to themselves.

But across the ancient world (and even in Athens) it wasn’t quite so simple. Particularly interesting is the constantly paraded connection of rape and marriage. That is obvious in Rome where the origin of the institution of marriage itself was found in a notable mythical rape. Back at the beginning of Roman time Romulus’ new community  had everything it needed, except the wherewithal to ensure its survival: that is, women. So they invited their neighbours, the Sabines, to a festival and at a given signal – when everyone probably had had rather too much to drink --  carried off the young women. This was “The Rape of the Sabines”, immortalized in hundreds of Renaissance paintings (like the Poussin at the top of this post). Modern authors often tone down the sexual violence, and think of it more as “abduction”; but rape it was.

But the connections go further than that. One striking plot-line in Greek and Roman comedy has the young hero rape an unknown woman shortly before his marriage – only to discover later that the woman was actually his fiancée. A happy ending in Greco-Roman terms!

Rape was also a favourite theme in the Roman after-dinner, up-market parlour game (as well as school-room exercise) known as “declamation”. This involved a series of made-up laws and made-up cases, which the participants would plead from one side or the other. One of those made-up laws stated that a woman who had been raped could choose whether to put her assailant to death or marry him (a hint in itself that Romans could see rape as rather a more of a women’s issue than the Athenians did). One of their most ingenious puzzle-cases went like this: on a single night a man raped two women; one wanted him put to death, the other wanted to marry him. The game was for one contestant to plead the case for execution, the other for marriage.

It seems baffling to us as a response to rape. But my guess is that the Romans would find our worries about drunkenness and consent no less odd.

Comments

[j]

I understand what you're saying but it really varies from case to case. When this happened to me what disturbed me most was that the guy in question was a close platonic friend of 4 years and he was sober. In hindsight his motive seemed to me that he was just desperate for sex and I could have been anyone. Of course, he acted as though nothing had happened and the minute I let him know how angry I felt about it he cut all contact with me. I think he's dangerous. I also think that it's changed me. But if such a case went to court it would be my name dragged through the mud and not his. It is the supposed victims sexual history that is brought up. I take responsibility for getting drunk, that was my choice and fault. True I think it is possible to make a bad judgement but a man who does this sort of thing should be made to feel that it's a sad and pathetic thing to do. That you never get something for nothing and that people will think a lot less of you when they find out.
In my case I would love to see my perp banged up, preferably with a cellmate who is twice his size and has lower moral standards than him. I would love for him to know what it feels like to be abused and betrayed. I too rage at the memory of him fiddling with me and rubbing himself against me as I'm half-asleep, helping himself. Sad sick little man.

[Ronald Skyway]

My girlfriend of 4 months, at that time, and I went out drinking with some friends for a fare-well. Up to that point we had abstained from having sex, which was more against my wishes, but I respected her and her wishes. She was plastered and kept telling me she wanted to have sex, in many different ways, all night.

We'd slept next to each other every night for the last 3 months, nothing sexual, kissing was the extent it went to on some nights. This night was no different. As sexually frustrated as I was, I felt it was wrong to take advantage of her in her drunken state and I figured that this had happened before, and that was the reason for no sex up to this point. I didn't touch her that night, not because I thought it would have been rape, but because I knew that had she been sober, she wouldn't be naked right now trying to take my clothes off. I was drunk too, but I could still make a rational decision.

The next day we talked and agreed to have sober consensual sex the next night. We both felt a whole lot better about that.

We are now married as of 12 days ago after being together for 1 year. To think that this relationship could have been ruined by drunken sex is absolutely absurd to me.

I don't know where to side on this issue. A drunk behind the wheel of a car is unable to make clear decisions and will probably cause some kind of accident. A drunk woman in bed seems more like a stupid decision to binge drink without a plan, or a wingman to make sure she makes it home ok.

I know one of the guys who took advantage of her. Yes it makes me angry. But I don't know if that should qualify as rape. Should a good consent law be that if a man and a woman agree to go out drinking together, that is consent enough because everyone knows what the most likely outcome of that will be? To some, that would seem absurd, but it's not that hard to figure out. I think she made a very poor, poor judgement call in trusting this guy to make sure she got home ok instead of waking up naked in a foreign bed while he is up playing his computer games.

We live in a world of no-strings-attached sex.

Seriously, what does a woman expect out of that situation? Some of us take for granted the fact that we have never been in a situation like this. For those unfortunate others, you're putting yourself in that situation. DUH!

I came to find out later that my girlfriend's (now wife) previous sexual encounters were all alcohol related. That does not change my stance.

In this situation, a woman has as much control as a drunk driver. But just like the driver, she made a choice whether or not to have a plan on how to get home. She needs a designated driver to make sure she gets home ok.

Guys know what they are doing when they get a girl drunk, and yes, it's messed up, but at this point in our society, girls should know what guys are doing when they are being handed drink after drink...

[betha]

What makes the Sabine rape all the more interesting is that, as violence, it was state-sanctioned, state-decided violence.

[LA]

I didn't know Mary at all. I went to Williams Continuation High school with her a very short time in 1975 or 76. She was in my math class. There were quite a few of us from the same high school that kind of had our own little clique. I remember we were not very friendly with Mary. We thought she was stuck up. Now from reading your blogs I realize that being artistic as you all say she was I can see why she wasn't interested in people like us. Anyway, we all went back to our respective high schools after the school year was over. I remember reading about Mary's murder in the Mercury. It has haunted me for years also, as it has all of you. I am glad they have finally caught the person who did this to her. Alot of you are writing about what a woman or young girl wears or behaves. No woman, whether a nun or prostitute deserves rape. No human deserves to be discarded the way this man discarded Mary. For all the holier than thou blogs I have been reading on this, it could have been any of us.

[Dr Zen]

I've always found the notion that if a woman won't agree to have sex with you the best course is to ply her with booze until she's too pissed to say no rather repellent. I don't see how this is in any way a comment on a man's ability to consent: it would be equally repellent for a woman to do it to a man. It's a greyer area than the government makes out, yes, because one would not wish men to be prosecuted for sex that their partner regrets, but the general message that it's not okay to take advantage of the comatose is surely not too objectionable.

[Xjy]

@James Rowen. Good you remind us of the *violence* involved. But, again, rape is a fusion of sex and violence. Sex distorted into hostile violence. Sex seized non-consensually presumably cos the perp has no hope of consensual sex.

Like our society which always presents sex as manipulated or derationalized activity (state-sanctioned marriage being the equivalent of a nuclear reactor with concrete shielding and safety rods to contain the contamination). Goddamn monk's-eye-view. Go Abelard! - But we all know what they did to him... :-(

At least this means that all joyful, non-manipulated, consensual sex is subversive.

[James Rowen]

Murder and rape are even more of a problem to prove.

Look at a 30 year old murder case in the heart of Silicon Valley that has just been solved using a random DNA sample.

If we cannot accept that rape is about violence, and not about sex, these crimes will continue.

This is especially true when the media put out pictures of the victim that show them in bikinis or underwear.

Mary Quigley, a high school student in 1977, was raped and stabbed to death. The newspaper photos of her showed a girl wearing a bikini and having a tattoo.

This shows people that rape victims, especially the ones that are murdered are "asking for it" and that is wrong.

Journalists should help crime victims by showing them dressed normally to allow the public to identify with them.

www.missioncitylantern.blogspot.com

She was a classmate of mine.

[melp]

Some figures I've shamelessly lifted from a rival newspaper....

approx. 12 000 alleged rapes reported each year. Only 12% even get to court, and only one in twenty of these results in guilty.... I wish to echo Naomi's disbelief in the idea posited by Edward that 11 400 women are crying rape for malicious reasons, and only 600 are true! This is ridiculous and tragic.

The attitude to rape doesn't seem to have changed as much as I thought... people still think that it is the womans fault to some degree and she must have 'wanted it' at the time but then regrets it and decides the best way to deal with a regrettable encounter is to drag it through the courts so she can relive the night she regrets over and over and over again in front of a bunch of strangers... is this likely? Apparently many people think so..

Secondly we still seem to have the impression that all men are potential rapists by virtue of having a penis... and the ad campaign discussed doesn't help to dispel this. But trying to get higher conviction rates for rape is not demonizing men... who are demonizing men are the rapists who get away with it... and they are getting away with it...

[Jackie]

The problem I have with the debate on laws regarding rape is the double standard. As Naomi said, why should it be assumed that a drunk man is more capable of making an informed decision than a drunk woman? There is also the implication that all responsiblity is the man's, and there is no responsibility on the woman NOT to get drunk in the first place, and therefore remain in control. This is more of the patronizing 'little woman' attitude I was hoping we were slowly getting rid of.

[Naomi]

Victor Lownes: going back to the ancient perspective, the line between seduction and rape was notoriously difficult to define (maybe more so in Athens, but not only); it wasn't seen as "proper" for a woman to express any sexual desire - but nevertheless there was a common underlying feeling that women's sexual desire was uncontrollable and rampant. So, effectively, women were always up for it; but they couldn't say so. Of course, a well-bred woman would say "No, no, no"... but she wanted it really. That was more than 2000 years ago, though. These days I'd like to think we’ve come to a point where it's accepted (and acceptable) that women feel desire, and can say so when they do.

Rape doesn't, legally, mean unwanted sex, it means sex without valid consent. If someone wants to die, is planning to commit suicide this evening, and (s)he is stabbed to death on the way home from work today, that doesn't make the crime any less a murder. If "she said no, but she was gagging for it really", that's still rape. Of course consent isn’t always easy to gauge, and it isn’t necessarily verbal. But maybe, if there’s some doubt, it’d be a good idea to ask? And if she says no it doesn’t matter whether or not she “wants” it (as if there’s only one meaning or level of wanting to have sex with somebody – many people are attracted to other people when they’re married or in relationships, but I imagine a lot of them say no even though they do very much want to have sex) - then it's time to stop. If she does want to have sex, well, that's her problem - she should have said so.

The drunken consent issue is difficult and I do agree with other commenters that it’s not acceptable for drink to be classed as removing a woman’s ability to consent to sex but not a man’s. Seems offensive both ways – implying that women aren't responsible the way men are, and (like the poster campaign) that men all constantly want (nothing but) sex and are prepared to rape to get it.

What I find strangest in this recurring debate, though, is the regularly-made assumption that under such a law (or even without it) a whole host of women would relish the opportunity to take men to court over sex they regret the next morning. I'm not saying women never make false accusations of rape. But accusing somebody falsely of rape, knowing that you consented, is an incredibly malicious act, not to mention most people find it quite difficult to lie consistently and convincingly for a sustained period. Reporting a rape is by no means an easy thing to do, and rape trials are very traumatic for the (alleged) rape victim. I find it somewhat difficult to imagine that 95% of those who report a rape are deliberately making false allegations. Why would they want to??

As for the ancient gods and mortal women, Candadai Tirumalai: divine rape, I reckon. But anyway... in theory gods could be so irresistibly compelling you’d agree to sleep with them in any conceivable circumstance (though in that case you'd wonder why they use such elaborate disguises), but I don’t know any human men who fall into that category...

[Victor Lownes]

Now happily married and faithful, but I can recall seductions that were preceded with "no,no,no"s followed by "yes,yes,yes"s.Nobody ever claimed I had raped them and I would hope the statute of limitations would prevent their coming forth with this new interpretation of the law.

[Edward]

"Why is no-one saying that it would be better to stop men having non-consensual sex in the first place rather than invent hopelessly ingenious ways of trying to convict them when they do?"

Because the point is not one of fairness or common sense. It is to further demonize men. The very assumption that not enough trials end in guilty verdicts is outrageous enough to begin with. Why is no-one saying this?

[K]

I can't say what should constitute consent in the UK. But no area in law has more chance of unintended consequences than rape. They should really think it over before making big changes.

The Roman double rape seems simple to resolve. Let the one woman marry him and then execute him as the second wants.
Nothing in Roman law said a husband can't be executed.

A more interesting case would be if a married man raped a woman not his wife and that woman chose to marry him. But she could not unless polygamy was allowed. I believe it was not under the republic.

[bingley]

@xjy: a man and a woman both somewhat the worse for drink go to bed together and one or both of them regrets it in the morning. I fail to see how there is a 'perp' or victim involved rather than two people who made bad decisions under the influence. If the man is a rapist simply because of his sex, then who would be the 'perp' and who the victim if two men were in the same situation?

If I might tell you something from my own experience. When I was about 30 I was sharing accommodation with another man and two women of a similar age. One of the women had been drinking and quite bluntly asked me to go to bed with her. I was sober and declined. Before the situation could develop any further our housemates returned from wherever they had been. If I had been similarly inebriated I might have said 'yes'. How on earth would this have made me a rapist?

[Fred O'Hanlon]

Dear Mary

This article and your previous one on new religions have provoked a fascinating and contradictory range of responses. But either no-one has commented, or you have chosen not to publish, any responses to your personal rape story.

As you point out with regard to the new rape proposals, in a state of bilateral alcohol-induced diminished responsibility, legislation which recognises only unilateral liability for the outcome is ‘bonkers’ – is there an unconscious pun in your choice of epithet - because it discriminates against men. But in order to stress that you are not treating ‘violence against women without due concern’, you provide a link to a description of an incident in your own life in which you describe as rape “to all intents and purposes” what the vast majority of your women readers and most men would surely regard as rape ‘tout court’.

It was of course very foolish of you to share a sleeping compartment on a train to Naples with a man. It is still foolish of you to resent the knowing look of the steward. He would have assumed your presence there was either ample evidence of consent or at the very least of culpable naivety - I was living in Naples at the time. The villain was the rapist, an architect. Does not higher education entail a heightened awareness of just such issues and hence a more responsible judgment of acceptable behaviour?

As a man I recall two or three occasions in my own life when I was in a similar position to the architect. I made no advances and afterwards wondered whether or not I had missed out, actually disappointed the other party.

Your point is of course the problem of how a third party, the law, for example, - let alone those directly concerned - can decide on the criteria for what constitutes consent. Consent here is equivalent to what the schoolmen would have termed ‘free will’.

The advertisement you publish most certainly suggests that ‘rape’, as defined by New Labour, is a risk not worth taking. That is its message and it is not just bad taste like the advertisement itself. It is wrong. This is a moral judgment and New Labour is reluctant to take a stand on moral grounds. The people who designed the ad were presumably concerned with its impact rather than its message. How many men will bother to look at it? But men will stop to look at it for the same reason they will commit binge rape. The message actually encourages what it purports to condemn.

One of your previous correspondents comments that “it's no fun risking an auto da fe by demonstrating the absurdity of all kinds of religion compared to a scientific and rational atheist approach.” The correspondent is making an act of faith in 'science' and begging an awful lot of questions about what is scientific and what is rational.

'Ratio’, as you well know, is one of the standard Latin translations of ‘logos’, as is ‘word’, as in St John’s gospel, for example.

Regards

Fred O’Hanlon

[Xjy]

The logic is simple - perp vs victim is a one-way relationship. And in principle no one ever willingly consents to their own violation. Public opinion in Britain needs help understanding this, and the comments that view the perp-victim relationship as reciprocal show why.

The Romans as always made the situation brutally clear, as in Mary's story. Two women were violated. Both wanted to cancel the violation.

One chose to continue regarding the violation as such and wipe out the perp by execution - like for like.

The other chose to wipe out the violation by redefining it after the event as a prenup negotiation, hence the marriage demand.

So the social logic driving the apparent paradox is very clear. The man entered into a contract with the women by force, and society made sure the contract would be honoured - also by force - one way or the other. An account had been opened, and needed to be settled - one way or another.

Do ut das.

Double-entry bookkeeping. Italian invention. Simple.

[Michael]

This ad not only objectifies women by turning her into a sex object that can or cannot be entered, but is particularly insulting to men, who are assumed to be waiting for the opportunity to rape a woman. As a man who happens not to be a rapist, I dislike being exposed to these ads; I find their insinuation an insult.

[bingley]

If drink removes the woman's responsibility for what happens, why isn't it considered to remove the man's?

[melp]

I think that analogy is looking from the wrong angle... rather you want to ask whether it would make a difference to the guilt of the drunk or dangerous driver if their subsequent victim was also drunk…. a rape victim has committed no crime, unlike a drunk driver.

[Candadai Tirumalai]

What about the ancient gods and mortal women? In "Leda and the Swan" Yeats gave powerful expression to the encounter with Zeus which led to Helen and tragedy. Divine rape or the mystical union of the human and divine?

[David Hadley]

Wouldn't it be far better to attempt to teach women (and men, for that matter) that getting so drunk that you are unable to coherently consent to anything is - in itself - a bad idea?

Also, think of the outrage if a person who killed through dangerous driving was let off because they were too drunk to realise that driving a car in such a state is a very bad idea.

[melp]

I am slightly confused about exactly what this change in the law is trying to achieve, especially juxtaposed with ad campaigns such as the one above. It seems to me that the ad campaign just creates heightened fear of women having a dangerous sexual power to entrap men, a modern day depiction of Pandora’s box, alluring yet dangerous, and we all know what happened there…. And yet at the same time I see this proposed change in the law as actually taking power and choice away from women… a drunken women is like a child, unable to give consent and having sex with her becomes statutory rape… is this really going to help? I can’t help thinking that despite the good intentions this would actually represent a frightening step backwards it terms of women’s equality.

[Mary]

I hadn't seen that second poster...
I did however spend some time after I have posted reflecting on just how dreadful the one I showed was. If you say that rape is in some way connected to the objectification/commodification of women, then there is something peculiarly spooky about contesting it in exactly those terms. Woman is here shown without her face, as just sex; and 'entering' her is seen as in some ways analogous to 'entering' prison. Perhaps the idea is that by using this idiom, it reveals to the potential rapist the shallowness of his own value system... more likely to confirm it, I'd say. You can treat her like that provided you can get a yes out of her!

[Max]

Another poster in the same Home Office campaign is fairly jawdropping -- click on my name below for the link.

[Xjy]

Naturam expellas furca, tamen usque recurret.
You can drive her away with a pitchfork - but Nature comes running right back!

Tough subject, this one. The combination of sex, volition and violation (seizure assault/capture/kidnapping/deprivation of freedom) arouses such turmoil in us that reason often vanishes. Deep individual needs, deep natural collective needs, deep social needs - all contradictory and all immensely powerful. Stuff of ancient myth (Helen of Troy) and our daily narrative mainline fix (Screws of the World).

Hm.

Perhaps, briefly... Only the oppressed are willing and able to liberate themselves.

So... girls and women need to discuss openly and freely what they want and how to get it while retaining possession of themselves (if this is what they want, which I assume). This also involves discussing openly and freely what lads and men want. Now in case of conflict, what to do??

My answer in such discussions is social empowerment of the individual before the act of violation. Anything after the act is too late, and quite likely wrong, even if it may be necessary.

This means ruthless training of girls and women in self-defence. Above all - attitude. "I'm not getting into trouble. But if I do, god help the arsehole who attacks me." The human body, even a normal, not very impressive one, possesses an array be a very painful, even lethal, weapons. Deployed on a rip tide of rage, accompanied by ear-splitting warcries, they will allow any woman to scare the shit out of any man for long enough to make her escape.

Our society won't permit this kind of self-defence to be taught in our schools. So we have to arrange it ourselves.

All other discussion of violence against women needs to be seen in a perspective of this lack of concrete empowerment.

Society allows/encourages women to be raised as victims, so all of its anti-rape, anti-violation measures are steeped in hypocrisy.

But then, you can judge the cultural level of a society by the position of the women in it...