The way to handle the relationship between alcohol and alcohol-facilitated rape isn’t to adopt some prohibition-lite approach that shames people (women; it’s usually women that get shamed for pleasures of the flesh). Not only is it wrong, it doesn’t even work. The way to deal with it is to recognize that shame and discomfort around sex incentivize the connection between alcohol and sexual situations. If we want to reduce the rate at which potential victims of sexual assault are intoxicated, the smart solution is to reduce the incentives to intoxicate.
A Brief Review
I am going to TL;DR everything I’ve written about rape, rape culture and the rapists’ social license to operate. here goes:
Most rapes are committed by a single-digit percentage of the population. They are really bad people who know that what they are doing is rape. They do it over and over again. They do it because they like it, they can’t be talked or educated out of it. But they are for the most part rational actors who recognize their own self-interest. The reason they keep getting away with it is because our culture is messed up around sex and gender in big, systemic ways that allow it to happen, sometimes by outright saying that rape is okay, and more often by making it a joke, minimizing it, undermining the victims and especially survivors who report, etc. — rape culture. Some people don’t like that term, and those people and I are not going to have a productive conversation. What the rapists do is figure out the specific loopholes, the circumstances created by rape culture that, if they construct their modus operandi to fit them, will find that their conduct is overlooked, excused, defended, or covered up — that they can get away with it. Their “social license to operate” is the leeway they get as long as they stick within the areas where society will do little or nothing to stop them.
I’m not going to cite anything for that, because this blog contains over 300 posts, many of which are either discussions of research or analyses of culture around exactly this issue. I’m not really interested in arguing about it, either. There have been active dicsussions on many, many of those posts, and I’m just summarizing.
So this ran at HuffPo. It’s about alcohol and rape, and readers here know that usually, when someone starts yammering on about those girls and their drinking, I call them a rape apologist piece of shit and lambaste them as part of the problem. What I want to explain is that I stand by that, and I largely agree with what Dr. Fulbright says, and those two things are not inconsistent.
The Surrender Caucus Gets It Wrong: For Example, Emily Yoffe
Regular readers know that I really dislike Emily Yoffe, Slate’s Dear Prudence. I have called her part of the “surrender caucus” (my term) on this issue, and though she seems to understand or at least pay lip service to an understanding that rapists are mostly a group of discreet bad actors who know what they are doing and are rational, she insists of approaching policy as though they were a weather system that could not be affected by human activity but only avoided. She is therefore a great example of how to get this badly, drastically, harmfully wrong. Yoffe’s position in most easily summarized in her smug and dismissive response to a woman whose friend believed she was raped while blackout drunk. She said:
I think seeing herself as a victim would keep your friend psychologically stuck, and turning the guy over to the police would have the potential to unnecessarily ruin his life. Imagine watching a remake of Knocked Up in which the Seth Rogen character ends up on the sex offender registry. Your friend’s unfortunate one-night stand should help her realize she needs to learn the difference between taking the edge off and ending up in a walking blackout, and how to stay on the right side of that line. I think your friend needs to see a therapist, not to explore the wrong that was done to her, but to help her process this regretted evening and get her to the point where she can comfortably be in this guy’s presence.
Yoffe has in other places tried to make her position more palatable, though not by much. But it’s clear here that she is not willing to entertain the idea that the guy did anything wrong, or is a rapist — he’s a Seth Rogen character, just an ordinary guy, sexually penetrating blackout-drunk women, like they do! It’s clear here that it isn’t so much that she doesn’t think there’s anything we can do about this guy, — she doesn’t think he did anything wrong. On the other hand, we have what she thinks of the young woman who says she was raped. (The letter writer was not the survivor, but a roommate who wants to do the dreaded “stay friends with both of them” routine. Which is impossible. If one friend says another friend raped them, you can’t be neutral. Either you believe it or you don’t, and staying friends with someone whose account you believe is a fabrication is wrong.) What Yoffe thinks of the woman is that she’s a drunk, and needs to get her shit together. Yoffe thinks this despite a complete lack of record of how often the woman gets seriously intoxicated — for all we know, this was the first time in her life she’s had more than one drink, and she was plied with alcohol by the rapist. For all we know, she got that drunk because he made her drinks that were much stronger than they tasted and pushed her to keep putting them down. But that’s not what Yoffe assumes. Yoffe assumes that she doesn’t know “the difference between taking the edge off and ending up in a walking blackout.” Yoffe assumes this, obviously, because of the preconceptions she brings to the table, because there is no text available in that letter to support it.
If you start where Yoffe starts, that there may be rapists in the world but the real problem is all these women drinking like nothing can happen to them, then whatever face you’re trying to put on it, and no matter what disclaimer you append, your actual position is blaming victims. If you start there, you’re not actually going to try to do anything systemic about rape.
Some folks — the Yoffe defenders — surely believe that by finger-wagging at women over their drinking, they are doing something systemic, that if they simply get enough pressure on women not to drink, or not to drink much, then all this will stop. If they believe that women drinking causes rape, at least that has the virtue of logic. If rape is a chemical reaction that happens where a phallus forms from alcohol molecules catalyzed by bar cigarettes and dorm blankets, then limiting alcohol will make rape go away! But rape isn’t a chemical reaction. It’s a criminal decision.
The less silly Yoffe-siders recognize that’s untenable; that no amount of alcohol in a bloodstream causes one human to become a rape victim in the absence of a person to do the raping. They implicitly or explicitly decide that nothing can be done about the rapists, so the best or only structural response is to control the potential targets. In this way, telling women not to drink is of a piece with telling women how to dress. The smarter surrender caucus members recognize that provocative clothing is laughably unrelated to rape, but believe they are on more solid ground with drinking. That, in and of itself, isn’t wrong. Provocative clothing has zero connection to rape, while alcohol absolutely does. It’s not the part about paying attention to alcohol that’s wrongheaded. It’s the model where controlling the target is the policy solution. That’s wrong both practically and morally.
If we take the Yoffe solution to its logical conclusion, we would reason like this: women drinking alcohol facilitates rape> we need to keep women from drinking alcohol for their own good> outlaw alcohol. But we tried prohibition in the US, and the negative consequences are disastrous and there is no chance that’s going to make headway. So the next solution would be, what, incentivize women not to drink, or not to overconsume? That’s where Yoffe ends up, and I’m using her as a stand-in for much of the surrender caucus, because that’s where they all end up, unless they are stupid enough to say, “stop dressing like sluts.”
But like prohibition, the negative effects of that approach far outweigh the positives. There is an ugly history at colleges and in the military, that when they create an incentive not to overconsume, it ends up being used as a weapon against survivors who report. A survivor reporting a drug- or alcohol- facilitated rape is admitting to intoxication; if that’s a problem, it’s a strong incentive not to report. Let’s move beyond the formal to the social: Yoffe’s letter does the same thing, in a lower register. She’s attacking the woman who says she was the victim of an alcohol-facilitated assault, instead of asking why the man was fucking a woman who was in a blackout. The stigma is so bad that a woman who gets drunk can’t even count on justice if the police molest her in her inebriated state — even with a confession on tape.
How To Get It Right: Reduce The Rapists’ Social License To Operate
If creating a disincentive to drink, or drink to excess, is doomed to fail, then do we have to give up on the idea of reducing drinking altogether? No, and this is the critical difference between Fulbright and Yoffe. The way to reduce drinking isn’t to punish overconsumption. It is to reduce the incentives to drink.
Fulbright’s policy proposals don’t facially have anything to do with drinking at all: not dry campuses, not alcohol education or awareness campaigns. Instead, she calls for comprehensive sex ed, relationship education on campuses that dispel myths about sex, and sexuality-sympathetic healthcare. Those are not solutions to drinking, but they are solutions to one cause of alcohol consumption specific to sexually loaded situations. As Fulbright says:
[W]e need to address the fact that many young people feel like they need to get drunk in order to be sexual and sexually active.
We need to own the fact that we’re a society that sexualizes its youth, but that ultimately does not support them in the fact that they’re sexual human beings. … So is it any wonder that young people see alcohol as an easy solution to their sexual ignorance, decision-making, and anxieties? If wasted, one doesn’t have to deal with underlying discomfort and Puritanical guilt around sex, or worry about the impact of sexual intimacy on another human being, or get submerged in the experience, including matters of the heart. Drunk hook-ups allow youth to keep emotions separate from sex, to skirt commitment issues, to avoid romance, and to stay focused on the self and all of the other reasons they’re in college.
Until we’re willing to address this mentality, and this misguided, positive association between sexual activity and being intoxicated, efforts to counter sexual assault as it relates to binge drinking are futile. Until we’re willing to deal with the fact that young people are sexual people who need more realistic, developmentally appropriate guidance when it comes to sexual expression and satisfaction, the situation is not going to change.
I don’t know Fulbright, and I don’t uncritically sign on to everything she says, but I’m not going to sidetrack just to quibble. The kernel of it, that alcohol is deployed as a disinhibitor because the culture facilitates ignorance, denial and shame around sexual decisions and desire; that much I agree wholeheartedly with. One reason young people can be targeted for alcohol-fueled sexual assaults is that if they think they will or want to be sexual, a culture of shame and inhibition incentivizes intoxication. The way to change that isn’t to punish the intoxication (which is famously a failed approach) but to remove the shame.
That won’t stop drinking. Nor should it. Jaclyn Friedman has made the case, I think as powerfully as anyone can, that sometimes tying one on is just fun, and people are going to do it, as part of an overall understanding that life without risk is neither obligatory nor desirable.
Meredith Johnson-White, sex educator and public health professional (and a friend through social media), had this to say:
As long as young women want to have sex, and feel they must drink in order to have sex, they will be more vulnerable to sexual assault. Raise young women who feel entitled to say yes, know how and when to say yes, and respect their peers who say yes, and sexual predators will have one less tool in their belt.
Unlike Fulbright, I do know Johnson-White and I don’t have to guess at authorial intent, and I can fully adopt what she said here. The meaning of yes and no, their value and virtue, are inextricable from each other.
The Right To Say Yes And The Right To Say No
One thing that consent activists have been consistent about, and that is consistently ignored or misconstrued by our political opponents, is that the right to say “no” and the right to say “yes” are inherently interdependent. You can’t have one without the other.
A right to say “yes” without a corresponding right to say “no” isn’t a right. It’s an obligation. If “no” isn’t heard, understood and respected; if “no” is frowned on, disrespected, if there’s a lot of downside to saying it, then folks will be pushed into “yes” when they don’t mean it, don’t want it — and then “yes” isn’t really yes.
A right to say “no” without a corresponding right to say “yes” isn’t a right. It’s an obligation. This is the world of the promise rings and purity balls, where “no” is mandatory and the only way to say “yes” is to create plausible deniability.
The problem is that we have significant elements in the culture that don’t want a right to say “yes.” At the extreme end, some people really believe that infections and unwanted pregnancies are divine retribution for sexual sin, and don’t want technology interfering with that.
This isn’t just about alcohol; many, many of the things that form rapists’ social license to operate are the areas where we as a society are not fully committed to the right to say “yes.” The rapists’ targets are not just the drunk, but the disempowered in any way — intoxication, but also incarceration, class, racial stereotype, disability, social isolation, formal or subcultural hierarchies; they’ll use whatever leverage they can find. The tactics they use count on disempowerment, and the best way to arm the targets and bystanders to disarm those tactics is not to make them stay sober, but to help them feel confident in their rights. Some of these things can only be addressed through other mechanisms, but some are cultural software direct to the end-user — making them feel, in Johnson’-White’s phrasing, which I love, “entitled to say yes.”* How can we expect young adults to say, “no, you’re pressuring me into something I don’t want” in a culture that pressures them not to stand up for what they do want? If we act like they’re supposed to apologize because “hookup culture” — that much-mythologized creature of moral panic — doesn’t look like their parents’ college experience, we are basically telling them to build in excuses, plausible deniability, bullshit about it and rewrite the narratives.
The most recent iteration of this is the response to first California’s and now New York’s college consent policy guidelines, requiring affirmative consent as a basis for campus sexual consent policies. The commentators who oppose this, like the deeply misguided Jonathan Chait, believe that college students are on the whole generally unable or unwilling to actually, affirmatively express consent. His confusion is understandable; typically in mainstream depictions of sex, there is little or no dialogue, the music swells and the participants presumably communicate telepathically, or never need to exchange information about safer sex, or what kind of sex they like or how they get off best. This is the message we send, that sex is best with no communication. It’s a shitty, stupid message, it doesn’t work well and it hangs on only because people are too squeamish even to discuss the media conceit that sex happens without communication.
What we need to be telling the next generation instead is to stand up for their own agency, say what they want, have the experiences they want to have and stand by them. Because someone fully comfortable with saying, “yeah, I want to fuck” is the person best positioned to say, “no, I don’t want to fuck.”
*the application of “entitled to say yes” as a general policy concept is far more broad than the middle-class college-centered framework of Fulbright’s article. “Entitled to say yes” could also describe the thinking that the starting point to give sex workers effective redress against abusive johns or law enforcement must be to decriminalize their living, so they can come forward without fear of prosecution. It would be simplistic to say, “everyone has to be free to say yes to anything in order to be free to say no.” I wouldn’t advocate that, because it’s wrong. But I would be willing to say that any policy approach that has to deal with sexuality and consent, that is meant to defend the right to say no, must reckon with the desire to say yes. Otherwise it won’t work.
As people react to the Jennifer Lawrence Vanity Fair article that I blogged about yesterday, I’ve noticed a troubling theme. People have not quite criticized her — I’m mostly talking about comment sections and social media and I’m not going to linkfarm that — for the sexually provocative photos that accompany the article, but sort of implicitly criticized her by suggesting that it is weird or inconsistent that she complains about feeling violated by the theft of her private nudes and also relates to her audience in a sexual way.
This is the epitome of not getting it. Or, rather, it is the epitome of trying to take an issue that is about autonomy and consent, and stuff it back into a Commodity Model framework that aligns her in a whore/madonna dichotomy, where she has to be somehow “consistent” in either demanding to be sexually available or sexually unavailable.
She does not owe us consistency in how she wants to be sexually available to her audience. Instead, we owe her consistency, in that we need to accept that she can present herself as sexual to her audience when and how she’s comfortable, and not when and how she’s uncomfortable. That’s what autonomy means for an actor managing a public persona.
She has said not to look at the stolen photos, because they were private and not meant for us. If she said, “I’m pissed that those were stolen, but I like the photos, so I’m releasing them,” that would be fine, too. If she said that, she wouldn’t owe us an explanation. Since she hasn’t said that, she doesn’t owe us a performance of “aggrieved virgin,” any more than she owes us a replacement for the pictures that we’re all not looking at because she said we shouldn’t. If she now wants to put out work that is sexually charged (as she has before — certainly there was a lot of sexual energy in her American Hustle performance), work that she controls and that she’s okay with all of us looking at, that’s her choice.
The only consistent theme is that she doesn’t have to be consistent in what she consents to. That’s how consent works. I saw one comment that said it was strange that she said both don’t look at my breasts in the stolen pictures and here are two thirds of my breasts in Vanity Fair. There’s nothing wrong with that. If a sex partner says, “I don’t want to fuck, but if you want, I’ll give you a blowjob,” that’s a perfectly valid choice. Why would it be any less valid to say don’t look at the stolen nudes, look at the seminudes I’m okay with instead? Having sex with someone once isn’t the same thing as agreeing to have sex with that person for all time. Having sex with lots of people isn’t agreement to have sex with every person. Having one kind of sex isn’t agreement to have another kind of sex. That’s how consent works. It’s not a ratchet. It’s not “once you do this, you can never go back.” I don’t think that consent is a matter only for people having sex with each other in private. I think that it also goes for the sexual relationship, such as it is, between performers and fans.
Think about the logic as it applies to someone who, unlike Lawrence, has been naked for an audience. Someone whose genitals appear on film, like Kevin Bacon or Rosario Dawson. If someone hacked their private nude photos, would that be fine because we’ve seen them completely naked? No! That’s absurd! They would be harmed in precisely the same way as Lawrence has been, and not any less! People who think that the harm to Bacon or Dawson from hacking their personal nudes would be less serious are adopting a mode of thinking not differentiable from saying that when a virgin gets raped it’s worse than if it’s a sex worker. That’s fucked up. That’s wrong. That’s both factually and morally indefensible.
Lawrence doesn’t owe it to us to be a “good girl” or a “bad girl” or any kind of “girl” to stand up and demand her right to keep her own property, to not have people invade her privacy. That’s not a cookie we give her for good behavior. It’s a right, and not one she forfeits because the way she presents herself confounds our expectations.
Vanity Fair has an interview out wherein Jennifer Lawrence addresses the stolen nude photos. She says that it was a sex crime, and she addressed the complicity of everyone who looks:
“Anybody who looked at those pictures, you’re perpetuating a sexual offense. You should cower with shame. Even people who I know and love say, ‘Oh, yeah, I looked at the pictures.’ I don’t want to get mad, but at the same time I’m thinking, I didn’t tell you that you could look at my naked body.”
Here’s how I look at it. I imagine she was my neighbor, my friend, and she came and knocked on my door and told me that her account was hacked and someone might send me nude photos, and would I please delete them and not look at them. Would I really look at them anyway? No, I wouldn’t, and so I didn’t. Some folks may be saying to themselves, “well, I looked. Are you saying you’re a better person than me?” I am saying that. I’m saying that because the victim is saying that. And I’ll tell you what I tell my kids: you can’t change the past, but you can change the future. Unfortunately there will be a next time, and next time you can make the right choice.
I suspect, if this experience hasn’t completely soured her on it, Jennifer Lawrence will eventually do a nude scene in a major movie, in a way she has some say in. Hopefully it will be work she’s proud of, and she will want us to show up to see it on the big screen, and if and when that film comes out, I’ll be happy to pay up and stand on line. That’s what I’d do if she was my friend, and that’s what I’ll do as a fan.
I already wrote about Emma Sulkowicz. She reported a man to Columbia University for raping her, but the panel cleared him. She went to the police, but they treated her poorly and did nothing. Then she formulated a performance art piece, Carry That Weight, which has been widely covered and has received a great deal of support both within and without the university.
Her parents wrote a letter identifying the man she reported, and shedding significant additional light: the same man, Jean-Paul Nungesser, was previously adjudicated responsible in an incident of violence sexual assault against a different female student, following her to her room and shoving her inside. And Emma Sulkowics made her decision to report him after learning from other women about incidents indicating that his behavior was part of a pattern. Here’s one thing they say:
3) The fact that Nungesser had previously been found “responsible” by a Columbia panel for following another Columbia student to her room, shoving his way in, forcefully pinning, and groping her was not allowed as evidence in Emma’s hearing. Just days before her hearing, Dean Valentini granted an appeal of this verdict, which re-opened the case and consequently disallowed it as evidence. This effectively hamstrung Emma’s case. (An aside: The final hearing for this other case was scheduled and held at a time the complainant had specified that she was not available to testify. Without her presence, the original panel’s “responsible” verdict was easily overturned.)
Much of what they say is about Rosalie Siler, the Columbia minion who acted as Sulkowics’ sole advisor and who, her parents say, essentially hindered rather than helped the presentation of the evidence of Nungesser’s misconduct. One might suspect, given both that the grant of appeal managed to fortuitously keep the prior conduct out as evidence in Sulkowics’ hearing, and that the University scheduled the new hearing for a time when the complaining witness was unavailable, and that the Sulkowicss allege that Emma was advised not to get her own lawyer (though Nungesser had one) and that her advisor did more to interfere with her case than to present it, that this was an effort to protect Nungesser.
The social dimension of the current political moment is this: universities are not willing to do much of anything to stop rape, but are willing to put quite a lot of effort into hushing it up, including putting a thumb on the rapist’s side of the scale in their adjudication processes. That’s what Columbia here stands accused of.
A federal judge once said to me, when I was just a young’un, that this is how you read a statute: “from left to right; stop at punctuation.” You don’t know what this thing says unless you read the text. TL;DR from the headlines does not an analysis make. So here is the pertinent text, the text of section (a), which is the part people are talking about:
(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:(A) The complainant was asleep or unconscious.(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.(C) The complainant was unable to communicate due to a mental or physical condition.
In some corners of the rape denial universe it is popular to say that this doesn’t happen, that all reports of drugged drinks are merely voluntary overconsumption. There are two kinds of people who say that: (1) those who have chosen to believe it, because they don’t believe anything women say anyway and because it’s convenient for them to believe it; and (2) those who know first-hand that it isn’t true, but want to protect those who deliberately and involuntarily intoxicate others.
When people say, “rape culture,” some people say that there isn’t one. Even some people who should know better say that. Everyone agrees that rape is bad, right? But they don’t. In the comments and threats that assail women who speak out about rape on the internet, when the trolls know people are unlikely to uncover their identities, they say what they really think. They approve of rape.
These allegations admit of no possibility of accident or miscommunication. Instead, this required a conspiracy of the bartender and the doorman, at a minimum, and probably at least the silent complicity of several members. Someone said, “let’s roofie a bunch of girls …” and someone else thought it was a great idea. As it became clear that someone wasn’t joking, but was actually planning and preparing, nobody, nobody, said, “no, actually that would be a felony and we cannot do that.” If you want to know what “rape culture” is, it’s a culture where someone could raise this idea and instead of a chill falling over the whole room, the other people either strain to pretend it’s a joke or gleefully join in. If you want to know what “social license to operate” is it’s that the idea that women at fraternity parties are targets to be intoxicated and sexually molested is so powerful that the guy that thought this up not only had friends willing to defend his idea, they agreed to help, and they believed that they would get away with it.
As a general moral proposition, to hell with loyalty. If you are ever so loyal to any person that, when that person says, “let’s rape someone,” it even occurs to you that going along with it is a viable option, your moral compass is shot and you need to cut all ties with every single person you know, pack up and walk as far as you can get into the most desolate wilderness until the ruinous effects of your social environment wear off and you once again develop the ability to hear your conscience. You. If you’re reading this now, and you’re thinking, “well, I don’t know, I might …” Stop. Stop, turn off the computer, and pick a spot on the map where nobody is, and go there. Until you do, you’re a danger to us all.