In the Washington Post, Ruth Marcus tells a cautionary tale about a young woman encouraged to believe she had been raped, and a young man who discovered he may be a rapist two months after the fact.
According to the male student’s account, “little more than ‘Hello’ was said before she grabbed [him], kissed [him] and [they] began to have sex.” “He claimed they each undressed themselves,” the Daily News reported. “They had sex twice that night, he said, and once more in the morning. .?.?. He said that after their second sexual encounter that night, the complainant said she was sober.”
The woman remembered the incident differently: “She woke up feeling terrible that she had become so inebriated and had sex despite not wanting to. .?.?. When he initiated sex that morning, the female student said she did not resist because she felt refusal would be too emotionally exhausting.”
Upsetting, but not, the woman initially thought, assault. It was only a few days later that her friends said the man’s actions constituted rape because she was too drunk to consent. “Let’s just start with objective fact: you raped me,” she e-mailed the male student in May. “You are a rapist.”
The young woman filed formal charges against the man (both students at Yale) the following April through the university. Yale’s strict “preponderance of evidence” standard of proof, writes Marcus, could have easily found the man guilty and ruined his life, but a panel ruled in his favor. The woman can still appeal.
More cases of ambiguous consent will likely lead to rape charges, convictions, and expulsions as the “only yes means yes” standard of campus “affirmative consent” becomes more popular.
Much ink has been spilled over the wisdom of that standard, encouraged by the federal government, passed as law in California, and adopted as policy at UNC-Chapel Hill and other major universities. But the foolishness of the left’s peculiar and expanding understanding of rape is nothing new. Women and men have been told for years now that sex isn’t okay if the woman is drunk, period. (Because of equality, we now also have to pretend that it matters whether the man is drunk.)
But why can’t someone consent under the influence? Date rape is a real crime – obviously, if a man slips a drug into a woman’s drink against her will, he is committing a grave violation. If a woman, though, drinks to excess of her own volition, and at some point chooses sex, has she really been raped? We should not assume the answer is yes; to do so is to rob women of their agency, to infantilize them.
Imagine if the courts absolved a drunk driver of manslaughter because the intoxication absolved him of responsibility for his actions. When it comes to drunk criminals, we punish them like adults. When it comes to drunk alleged victims, we just assume they had no control over their actions.
If there is a line at which people are no longer responsible for their actions, the government should not and cannot decide where it is. Only the individuals involved can decide for themselves, and they must do so beforehand if they are to accuse each other of crimes. The law cannot possibly be fair in judging how every individual responds to alcohol. Even if it could, this would not be enough to prove the accused should have known better.
The unfortunate story of the two Yale students shows that under the new college rape regime, a woman may choose whether the line has been crossed later, much later, and the man can do little about it except cross his fingers. Thankfully, “emotional exhaustion” does not seem to be accepted evidence for rape, even under the minimal standard at Yale.
