Is it okay for a sober man to have sex with a drunk woman? Depending on who you ask, you'll get a wide range of answers – most of them, forms of “yes”.
As long as she's not passed outAs long as she's not passed out, and doesn't protestEven if she's passed out, because you can't be raped if you're unconscious
From entertainers to news personalities to self-important bloviators, we hear it all the time. It's a favorite response from Christian conservatives that a rape victim is always to blame for being raped. It's less of a shock, then, when they lay the blame for rape or alleged rape on a woman's alcohol consumption. It's more surprising, though, when it comes from sources like famous atheist Richard Dawkins – not least of all because the idea that women can do certain things that cede their bodily autonomy to men is certainly influenced by the religious beliefs that Dawkins so famously rejects.
People expressing these ideas are widely (and rightly) termed rape apologists, but they'll deny this characterization fiercely. Why? Because they claim, and I've no doubt some genuinely believe, that sex with an incapacitated woman is not rape.
They're very definitely wrong, for several reasons. But before proceeding further, I want to make one point (as there sometimes is confusion on the topic): I am referencing cases when a woman is clearly, visibly incapacitated, and the rapist is sober enough to ascertain that fact. I'm talking about predatory behavior, where one party uses another's incapacitation as a means to acquire or bypass a facade of consent; not situations where both parties mutually consume alcohol.
With that established...we recognize that consent acquired in circumstances of mental incapacitation, or when a person is otherwise unable to fully understand the consent they're giving, is not real consent. Undoubtedly, intoxication can limit or curtail the ability to give consent. Not just consent to sex, but consent in general. If I wait until my buddy is blind, staggering drunk, and get him to give me his cell phone, credit card, or car title, chances are good that I'll be getting a visit from the police the next day. Whether he actually agreed, in his intoxicated state, to hand over his phone, car or credit card, or not, it is clear that I would be preying on his incapacitated state, and that his consent, if acquired at all, would be given in compromising circumstances.
Now, rape apologists will try to make a special exception for sex. They won't always claim it as such, but the fact remains that it is a special exception – for heterosexual intercourse between an inebriated woman and a sober or moderately sober man. Not for the friend who nicks your cell phone when you're drunk, but for the guy who rapes a drunk woman.
There's never a clear reason why this logic works for rape, but not theft. There's further no supportable reason why this logic, if we accept it, should only apply to man-on-woman or heterosexual rape – although this is almost the only context you will ever find it in. If consent to sex acquired after intoxication is valid consent, as many argue, it would be as equally valid between a drunk man and a sober man as it would between a drunk woman and a sober man. Obviously, it's not valid in either case. But I've yet to debate the topic with a rape apologist who would apply the same reasoning that they employ to justify heterosexual rape to homosexual rape (probably because the rape apologists I've debated have all been conservative Christians, who abhor gay sex at least as much as they think they should own women's bodies).
Rape apologists will also tend to focus on the voluntary aspect of incapacitation through intoxication: that is, that a person chose to get drunk, therefore they chose to put themselves in a situation that "led to rape." They can often see, for instance, that slipping a pill in someone's drink in order to acquire “consent” is rape; because the incapacitation was non-voluntary, the consent given is invalid. But if a woman chooses to get drunk, and a man acquires “consent” in that state of incapacitation, well, fair's fair, they argue. Which is of course terrible logic. Such an argument fails for the reasons noted above (it's not applied to any other comparable situation), and others as well.
For starters, drinking isn't consent to sex. Inebriation isn't consent to sex. For those who recognize that acquiring “consent” after non-voluntary incapacitation is rape, but believe consent acquired during voluntary incapacitation is peachy keen, it comes down to this: the validity of consent hinges on whether incapacitation is self-imposed or externally-imposed. This is nonsense, because incapacitation is not consent. The reason drugging someone to rape them is “real rape” isn't because the victim didn't take the drug on her own; it's rape because the rapist did not have the victim's consent to sex. The administering of the incapacitating agent without the victim's knowledge is a separate crime (designed to facilitate rape, of course – but a separate crime all the same). When someone has sex with someone who doesn't or can't give consent, that is rape, regardless of who administered the incapacitating agent.
Finally, these arguments will often point to instances where an inebriated person faces consequences for doing something to another person, saying that intoxicated people simply need to "take responsibility for their own actions". Back in September, Richard Dawkins, for instance, used a series of drunk driving analogies:
"Officer, it's not my fault I was drunk driving. You see, somebody got me drunk."
— Richard Dawkins (@RichardDawkins) September 12, 2014
.@mrgregariously Exactly. If you want to drive, don't get drunk. If you want to be in a position to testify & jail a man, don't get drunk.
— Richard Dawkins (@RichardDawkins) September 13, 2014
The crucial difference, of course, between someone having sex with a drunk person, and an inebriated person doing something to endanger others, is the primary actor in the scenario. If a drunk person does something that harms or endangers others, responsibility falls on the intoxicated person. If a sober, or more or less sober, person does something to a drunk person, the responsibility is the sober person's. In short, the responsibility falls on the person committing the act. If you wait until someone is unable to give consent, and then initiate sex, that is rape, and the responsibility is yours: having sex with a person who can't give valid consent is an action you took. If you get in a car drunk, and then drive it into a tree, the responsibility is yours: driving under the influence is an action you took.
Rape apologists – those who unwittingly fall into the category, and those who use rape apology as a means to justify their own actions and/or rape culture in general – base their arguments on a number flawed premises. They apply justifications for rape that they would never extend to other crimes. They place a burden on the rape victim that they would never demand of victims of other crimes. Those who argue that alcohol consumption negates a man's responsibility to acquire valid consent before sex are but a particular subset of a larger problem, but they are guilty of many of the same logical missteps as their peers in the wider victim-blaming movement.
Consent is necessary for sex, if you're not a rapist; when someone is unable to give informed consent, a non-rapist backs off. Really, it's just that simple.