It seems like you're taking a phenomenon that has been named by the 'boots on the ground' so to speak - and spinning it into this hyper-abstraction about 'empowerment.' I just don't follow this line of reasoning at all.

This smacks of pit bull owners talking about how if we only had all this counseling and training for owners, then the little darlings wouldn't tear little kids faces off.

Given the drinking age of 21, I seriously think undergraduate colleges should simply ban all alcohol parties. That would be killing three or four birds with one stone.

spinning it into this hyper-abstraction about 'empowerment.'

Careful, King Elvis, you're treading on the edge of bashing some of the hallowed activities of "social science" with a cudgel of "common sense." Battling myths is more fun than solving actual problems of actual people; I admit I like to do it myself.

Get off me you jerk! You're a disgusting excuse for a human being and if you're not out of here in one minute I'm calling your mother.

Sadly, there are many people who believe that the more ignorant you keep kids, the less likely they are to do to the dumb things you're trying to keep them in the dark about - considering the fact that most kids do dumb things quite regularly, that policy doesn't seem to be working.

If kids don't know about evolution, they won't sin against God, if kids don't know about the Muslim religion (remember the textbook uproar a few years ago?) they won't become Muslims and America haters - they'll become Christians and Muslim haters, instead. If kids don't know about sex, they won't have sex have and all those babies out of wedlock...

no no no Ellen, most wimmins are not capable of achieving the Amazonian heights of defense that you are, they are the weaker sex and must be protected.... :-)

Why haven't women thought of that before?

Few 20 somethings have ever listened to grandma's advice. They learn by experience, by getting out and living and failing, and only afterwards come to appreciate that grandma's advice might have been correct. Deal with it.

As to to the power of 20-something females over men, them using it, and how that eventually ends up, I would suggest for starters checking out the stories of Monica Lewinsky and Christine Keeler. I wouldn't argue that those two didn't go through hell, but what a high at the beginning, and what great memories for when they're staring at the wall in the nursing home.

Too many parents try too hard to control things. Just let the kids live and experience life. Being good all the time, no risky behavior, no hurts, isn't what it's cracked up to be: "Most men lead lives of quiet desperation and go to the grave with the song still in them"-Thoreau.

I don't believe that is what I said - I stated "that taking advantage of drunk people is predatory behavior." Taking advantage of anyone in an altered state of consciousness is predatory, and it doesn't much matter if it is sexual, financial or emotional - it's morally wrong. I don't much care if it is the addicted doctor stealing anesthesia from patients or a drunk taking advantage of someone more drunk or an employer taking advantage of illegal immigrants, the key phrase is "taking advantage", something I find morally reprehensible and especially so when the other person is seriously disadvantaged.

I don't suppose we could agree that anyone, male or femaie, who gets drunk should take some responsibility for their own behavior, could we? If someone is drunk and drives and kills someone, they're held responsible for both the death and driving while impaired. Why should rape be any different? And yet why should girls get a pass and boys not get the same presumption of innocence treatment?

The young girls I see here on this campus are much more aggressive when it comes to sex than in my generation, that's true. I'm also pretty sure (from listening to the loud cell phone calls they make about 'hooking up' while walking behind me on the sidewalks) they're not any more mature that we were at that age--though just as sure that they know everything, just as we were.

If a guy takes advantage of a girl while she's drunk, that's despicable. But shouldn't the girl also see herself as responsible in some way for putting herself in a situation where she can be harmed? It's about being smart or stupid sometimes, like knowing not to put your hand into a fan blade, y'know? Or drinking so much that you lose the ability to make good decisions.

I'm glad you can see things so black and white, Bev. Girl has two beers and starts making out, by definition it's "taking advantage of someone in an altered state." Riiiiight.

I can deal with it, as you say. I didn't do everything by the book, and I'm sure my children won't either, but the attitude in this day and age is, why bother describing the implications of their choices? ..or why make yourself look like a party pooper parent by putting any impediments in their pursuit of fun. That attitude in the extreme creates parents that want to be the friends of their kids and you get the cheerleader's mom that invites male strippers over and a bottle of tequila.

I think Monica is a good example of the demented hallucinations hookup girls can fall into. Remember her mother was advising her like her hookup wingman. And without opening a topic regarding Bill's choices, but does anybody doubt that she was nothing more than piece of machinery for his gratification and if not for that Blue dress, the nuts and sluts routine would have accelerated even further than it did. Again, I'm only focusing on her being used, poorly served by her mother and deluding herself, ..not his choices.

I have a lot of exposure to parenting of teenagers and I see alot of absentee, buddy buddy, or partygirl stage moms. If you mean being good as in sexually, its true, if a guy hasn't had a loveless sexual experience in his life, I wouldn't want to miss out on that experience. I think for a man, it makes him treasure his future wife when she comes along. For women that is less true. Are men and women different, woops, I said it,...yes.

As far as being good all the time, although it is not possible to be perfect, being good as often as possible is really a great thing. If we share with our children that if they put that above all other things, then they will live a happier life,...and for what its worth, secondarily the world would be a better place.

Remember, I'm not arguing anybody is going to hell or that if a particular girl is perfectly stable and happy hittin' it every day, good for her. I think the point of the above article though, is there is a problem. There is women's problem and no mechanism in place to help them.

The system in place 50 years ago had a structure and had its pluses and minuses. I think the above article is saying some girls are getting hurt and there are no guardrails for them to find answers. Saying as you do, just let kids live their lives is kind of a hands off approach that for many young people makes them feel like they have no one that cares, leaving them feeling alone. There is a difference between guidance and advice and being a controlling parent.

Looks like Martin is incorrect when she says most young men and women in this country receive an abstinence-only education.  But "proactively teaching young women and men about sex, power, and affirmative consent" sounds good.  I don't recall there being much of that in my own not-abstinence-only sex education in the 80s...  don't know if things have changed since then.

Look, I don't know what to tell you - we've taught our sons that to take advantage of other people is wrong and immoral. We can only hope that they continue to be honourable gentlemen in how they conduct themselves in their adult lives.

Rape is a crime, whether the victim or the predator (or both) is drunk. Yes, a criminal record follows people all their lives and it is difficult and in some cases impossible to overcome. I don't think that is a good, in my opinion, once someone has paid for his crime, he should not forever be stigmatized by it, but I don't think that the way to change that is to legalize rape or ignore it because someone made the judgement that the victim should not have been engaging in certain behavior.

An Air Force captain was recently convicted of raping six men, fellow officers or enlisted men, they went out drinking and he laced their drinks. Now should he be given a skip on this because the men volunteered to go drinking with him and he was also drinking? After all, it was a mistake in judgement on his part - he was impaired by liquor and if the captain had been sober, he might have exercised better judgement.

I don't think "the line" is all that difficult - don't do immoral acts such as taking advantage of other people.

The Air Force captain story is not much of an argument. The men volunteered to go drinking with him, sure, but they probably did not volunteer to have their drinks laced, did they. And the captain himself probably did not get drunk and by sheer coincidence get the idea to lace his buddy's drink and then rape him six times in a row.

I would advise reading the article at Militarytimes.com, I have no idea as to what you mean by your last comment.

If the men went drinking then surely they're responsible for what happened during the drinking aren't they? If they hadn't gone drinking they wouldn't have gotten their drinks laced. If you think that this is not fair to those men, then why is it fair to apply different rules for women? Why is it okay to take advantage of a woman who has been drinking? Or do you think that the perpetrator is responsible for his behavior?

I'm surprised. Not that long ago rape was not considered a sexual act. Apparently it now is? I wish I could remember the arguement, but it went something like - If I'm walking down a street and someone grabs my arm and rips off my $10,000 dollar watch I claim robbery. If under the same circumstances I give the sranger the said watch, it's not robbery. In either case I no longer have my watch, which is beside the point. The reason I no longer have it is the point.

John,

I agree.  But isn't the real issue here about non-forcible sex?  Valenti seems to be arguing that drunken sex without affirmative consent is rape, even when it was not forcible.

The issue here is consent.  When both parties are drunk-but-aware, and the woman silently allows sex to occur without saying "stop," has rape occurred?  "Gray rape" holds that because both parties were drunk, they were on equal footing in terms of decision-making ability, and therefore no rape has occured. 

If you believe affirmative consent is necessary, that changes things considerably.  Then the woman must verbally or impliedly provide consent, or a rape has occurred.  Certainly there is some wiggle room in the concept of "implied consent" (e.g. kissing, caressing, etc.), but at the end of the day, this theory holds that a man has committed rape when he has silent, drunken sex with a partner.

Finally, there are some people who would argue that a drunk woman cannot provide consent due to their intoxicated condition (similar to how a minor cannot provide consent in statutory rape cases).  If this is the case, then even affirmative consent would not be sufficient in cases involving drunken partners.

It seems clear that Valenti does not believe "gray rape" is a valid defense, but I'm not sure where she falls on the other issues.

[S]ome defense lawyers and even some students have taken to calling such episodes "gray rape" out of a mistaken belief that when both parties have been drinking heavily, responsibility for what happened falls into a gray area.

The Stepp quote above says that the concept of "gray rape" is "mistaken."  You claim Stepp doesn't argue the validity of "gray rape," but this is quite obviously wrong.  She says the concept is "mistaken" right there in black and white.  Thus, I assume Stepp believes a man is guilty of rape whenever he has sex with a woman who is sufficiently drunk, regardless of whether the man has also been drinking.  (Presumably, the theory works like this: a drunk woman cannot provide consent; a man who has sex with a woman without her consent has committed rape; the man's level of intoxication does not excuse the rape.)

The title of your piece is "Battling the Myth of Gray Rape," but it's impossible for me, as a reader, to figure out where you stand on the issue.  Is it the term "gray rape" that you oppose?  Or is it the underlying concept?  Do you think a drunk woman needs to provide affirmative consent?  Or is a drunk woman, like a minor, unable to provide consent under any circumstances?  

You say:

[W]e should be proactively teaching young women and men about sex, power, and affirmative consent.

Does this mean you believe that rape has occurred any time a man has sex with a woman who does not offer affirmative, unambiguous verbal or strongly implied consent?  Do you believe such consent is legally necessary in situations where both parties have been drinking?  When sober?  If so, you should go ahead and argue that point rather than nibbling around the edges.   

Friedman's article talks about how she was raped when she was drunk.  She was not passed out or too intoxicated to understand what was going on.  I assume she would have included any facts about telling the man to stop; no such facts are present in her account.  On the issue of consent, this is all we have to go on:

I never even tried to shove that guy off of me, something that I now know I could have easily done, even drunk, even if he was bigger than me, which honestly, he wasn't. But it never occurred to me there was anything I could do physically to protect myself. Why? Not because I was drunk. Because literally no one my whole life had told me that my body could work in my own defense (and many, many messages had told me to the contrary).

It sounds like a classic case of "gray rape."  (It is worth noting that this would have been a much clearer case of rape if she had told the man to stop or otherwise expressed a desire for him to stop.  We have no evidence that this occurred in Friedman's case.  It would also be more clear cut if she was passed out or so drunk she didn't understand what was happening.  Again, this was not the case.)

Based on the theory of affirmative consent, the man who had sex with Friedman legally raped her, despite the fact that (a) she knew what was happening and (b) made no effort to stop him, either physically or verbally.  The fact that they were both drunk (i.e. "gray rape") would not matter.  Moreover, one could argue that even if she had provided affirmative consent, it would still be rape, if a drunk person, like a minor, is incapable of providing consent.

The concept of "gray rape" is not some vague social phenomenon.  It is a legal defense for men accused of rape.  It holds that the mere fact that a woman was drunk when she and the accused had sex does not mean rape automatically occurred.  Ms. Valenti does not seem to agree that this is a valid defense.  What is less clear is how Ms. Valenti thinks courts should address the issue of consent.  Is affirmative verbal consent legally necessary in cases involving drinking?  She doesn't say.

Please indulge me in a hypothetical with the following facts:

1.  A girl and a guy meet at a bar while drunk.  They are both 21 year-old college students.  They both get drunk every weekend.  They both have a history of drunken "hook-ups."

2. They return to the girl's room.  Neither is too drunk to understand what is happening.  Both will remember the incident in the morning.  Both would describe their level of intoxication as "pretty wasted."

3.  They have sex without saying a word to each other.  She does not provide affirmative consent.  At no time does the woman say stop or take any action that would make the man believe his actions are unwanted.

4. The next day she regrets what happened.

Question 1: legally, has a rape occurred?

Question 2: would it have been rape if the exact same scenario occurred and no drinking was involved (e.g. they silently had sex without her providing affirmative consent or telling him to stop)?

Question 3: if the woman had provided verbal consent, would that consent have been legally sufficient based on the fact that she was intoxicated at the time?

if a man commits a crime such as rape while he's been drinking that's mitigated by the fact that he's drunk.

This is not the argument.  Mitigation occurs after guilt has been established.  The argument here is whether a rape occurred at all.  It comes down to consent.  The classic argument in cases involving alcohol is that the man "took advantage" of the woman when she was drunk, and that her consent, if provided, was not valid due to her intoxication.  "Gray rape" holds that because both parties were drunk, the man did not "take advantage" of the woman's intoxication - rather, they were both equally responsible for their own drunken behavior.

The distinction you need to recognize is that gray rape class of cases does not include forcible rape.  Any time a woman says "no," and a man has sex with her anyway, that's forcible rape.  Gray rape situations also do not include situations where a woman is passed out or nearly so.  Those too are clear cases.  Gray rape cases involve situations in which men are accused of raping a woman because their partner was intoxicated.  It is the woman's drunken state that makes his actions rape.  Thus, if the man was sober and the woman drunk, a strong argument could be made that he "took advantage" of her intoxication.  Most would agree this is rape.  In gray rape cases, however, both parties were drunk.  Thus, the man did not "take advantage" of the woman, the argument goes. 

If one believes that a drunk woman is incapable of providing consent (like a minor), then gray rape is not a defense.  If one believes that a woman must provide affirmative consent (verbally or non-verbally), and this did not occured, then gray rape is not a defense.  If one believes that a man only commits rape when he takes advantage of woman's intoxication, however, then gray rape becomes a valid defense.

Just to add on to owenz. If affirmative consent is required and neither person affirmatively consents (if even considered able to), shouldn't the man be able to charge rape as well against the woman?

--start sarcasm--
That will just make the problems of he-said, she-said in rape cases so much easier.
--end sarcasm--

I don't know about the pit bull analogy, but I do believe that the education we give teenagers about sex, drugs and alcohol is severely lacking. Not only is the approach inadequate, it's ineffective. The gen y'ers laugh at our foolishness.

We can't, as parents, bear the thought of Johnnie getting it on with Jenny, so we teach abstinence in high school. Parents know that approach is going to be abandoned by the young adults at college, so they look around for contributing factors....drinking.

We can't teach an effective approach to drinking, so we should ban it altogether. Now, because 18 year olds can be influenced by college seniors, all alcohol parties need to be banned.

How about talking, living and showing your kid by example an effective way to drink (or not drink) and an effective way to have an adult relationship.

I'd like to see Jessica Valenti more actively engaged here, but I don't believe that either she or Stepp is claiming that anyone who has sex with a woman who's had a few is legally or morally a rapist. Rather, it's about women who may have been subjected to rape (in the more usual sense) but are reluctant to press charges, because they feel that if they were drunk, it must be their fault. The purported sexism is in blaming the victim and encouraging the victim to blame herself. 

John 

http://www.haberarts.com/

The classic argument in cases involving alcohol is that the man "took advantage" of the woman when she was drunk, and that her consent, if provided, was not valid due to her intoxication. 

I don't get the impression that that's what "gray rape" means. "Affirmative consent" doesn't mean that consent which has been provided is invalid.  Here's an example from the Martin article:

Drunk and exhausted, Jen told him that she wasn’t up for it. He persisted. She remembers saying no a few more times, then eventually giving up, staring at the dark ceiling, waiting for it to be over.

I think the point here is exactly what you're saying:

Any time a woman says "no," and a man has sex with her anyway, that's forcible rape.

(I.e., whether he was drunk or not, whether she was drunk or not.)

The other issue of "gray" might be when it's unclear whether consent is being given.  If someone is unclear, they haven't consented. If someone is utterly incoherent, whether because they're falling down drunk, or because they're in diabetic shock, or whatever, you don't get to do stuff to them that they might not want you to do. 

So affirmative consent seems like a good rule of thumb to teach people, especially for when they're drunk.  Not only because a drunk person's ability to express what they don't want might be impaired, but because a drunk person's judgment about whether the other person is consenting might be impaired.

John,

You may be right. But it's a little unclear how the concept of "gray rape" fits into this theory.  Stepp says:

In gray rape, the girl who may have come on like the hunter becomes the hunted. Whose fault is that? For older generations, it seems clear that it's the guy's if she resists in any way or is drunk.

This is just an ambiguous few sentences.  I mean, is this how gray rape "works"?  The "hunter becomes the hunted"?   Notice the third sentence:

For older generations, it seems clear that it's the guy's [fault] if she resists in any way or is drunk.

Not much ambiguity there: if your female partner is drunk, you are a rapist. 

At bottom, rape is about consent.  And here we have Stepp describing a "hook-up culture" in which women are taking on the traditionally male role of pursuing drunken sex with random partners.  Culturally, there's a lot one can say about this.  But from a legal perpsective it calls into question the theory held by "older generations" that men should bear the risk if they have sex with drunken females. 

Stepp would probably argue that a theory like "gray rape" perpetuates the "hook-up culture."  But isn't it also a response to the hook-up culture?  As societal norms shift to the point where it is now acceptable for large numbers of our "best and brightest" college-aged women to get drunk every weekend with the goal of "hooking up," does it still make sense to blame men for drunken sex, like older generations did?

Please, don't get me wrong.  I am only talking about sex in which both partners were drunk, no one said "stop," no one was passed out or too drunk to understand, etc.  Just straight, drunk sex.  As Stepp says, older generations considered this rape.  I'm just pointing out that her own research suggests that perhaps this should no longer be the case...

I'm not going to fall into the word trap. I don't think I should have to explain or define a mutual sexual relationship between adults. If people can't understand that then they have more issues than those that can be discussed informatively on a politics forum.

I have clearly stated that taking advantage of someone in an altered state is morally wrong. As I have said repeatedly, the key phrase is "taking advantage."

Ok, I get what you're saying.  Just know: this is not how the law currently works.  In most jurisdictions, the only thing that is measured is how drunk the woman is.  If the woman is too drunk to consent, then rape has occurred.  It doesn't matter if the man is sober, drunk, or "taking advantage" or her.  Too drunk to consent = rape.

The whole "gray rape" defense comes up when a man argues that both he and the woman were drunk.  He is basically saying: yes, she was too drunk consent, but so was I, and neither of us really knew what we were doing. 

This argument has gained prominence in light of the "hook-up culture" Stepp describes, in which women are out chasing drunken hookups just like men always have.

I'd like to see Jessica Valenti more actively engaged here.

I've noticed this a lot at TPMCafe lately.  Writers posting stuff, then never bothering to reply to comments.  Kinda defeats the purpose, I think.

If affirmative consent is required and neither person affirmatively consents (if even considered able to), shouldn't the man be able to charge rape as well against the woman?

I know you're being somewhat sarcastic here.  In most jurisdictions, the answer is no: the risk lies with the man alone.  But it's not a crazy question to ask.  The "hook-up culture" Stepp describes in her book features men and women out on the prowl, looking for drunken hook-ups.  Ms. Valenti probably addresses this issue best when she says:

No one wants to see themselves as a victim—regardless of past sexual prowess.

Certainly, a good many men end up regretting their drunken hook-ups, just like the women.  And I'm not arguing that such men should consider themselves "victims."  But the fact that both men and women are out there aggressively searching for partners while intoxicated - and regretting their decisions in the morning - certainly obscures the lines. 

My point is simply this: the "hook-up culture" described by Stepp complicates a theory of consent that holds that a woman is raped anytime she has drunken, anonymous sex with a stranger. 

Here is the full scenario from the Martin article:

My friend Jen was squashed into a packed lecture hall at the University of Colorado in Boulder, scribbling notes as her sociology professor elucidated the power dynamics underlying rape, when all of a sudden her stomach and pen dropped simultaneously.

Her mind flashed back to a night over a year earlier: moonlight coming through her dorm window fell across the shoulders of a guy she barely knew, on top of her. Drunk and exhausted, Jen told him that she wasn’t up for it. He persisted. She remembers saying no a few more times, then eventually giving up, staring at the dark ceiling, waiting for it to be over.

Jen had woken up the next morning hung-over and angry at herself. Though the word “regret” was heavy on her mind, the word “rape” never once crossed it. But now, sitting in a sea of undergrads, some of whom had probably experienced similar sexual encounters fraught with alcohol and disconnection, the word rang true. Jen left class in a hurry, went home, and sobbed.

What is meant, do you think, by "persisted" and by "eventually giving up?" The actual scenario is deliberately left vague in the article.

If these terms mean she finally could no longer resist him physically, or she passed out, or she lost her ability to continue to articulate that "she wasn't up for it," that's one thing (rape).

If they mean that she got tired of hearing him beg for it, wanted to go to sleep, and figured he wouldn't last more than a minute or two anyway, that's another (consensual intercourse).

In between is gray.

that's another (consensual intercourse)

Where did she give consent?  She says "no" multiple times to a guy who is nevertheless on top of her, and then stares at the ceiling?  That's consent?

If they were both drunk, which was the perpetrator?

The sons of the prophet are noble and bold,
and quite unaccustomed to fear.
But the bravest by far in the ranks of the Shah
was Abdul Abulbul Amir

BevD, I agree with your moral argument. No question that someone using some kind of coercion, or manipulation of the mental state of another for sex, is reprehensible. It's hard to go from this moral abstraction into the specifics of a given incident between two real people and not start to trip over inconvenient ambiguities. 

Was she drunk to the point of amnesia, or had she drunk enough to 'loosen up' and do what she wouldn't do sobe? Was he drunk to the point of losing all inhibitions, or just high enough so that his moral judgements were clouded by his lust and her apparent willingness?

 I'm reminded of a case where a female student had initiated an email flirtation (they were released to the press) with a football player. He responded, and they eventually met. They drank. They had sex. Sometime later, she had second thoughts and went to the district attorney, who had just been elected on a "get tough on privileged athletes" platform and didn't think to question her story all that thoroughly.

Turns out (also through documents disclosed at the trial) that her claim was that she wanted to have sex with him, and was a little drunk, but that she had never actually used the word "stop". She actually said at trial that she was thinking it, but never said it.

Now, I'm not automatically defending the football player, because he apparently was rough with her. But in his defense, he said that he had no way of knowing that she wanted to stop, because <i>she never said anything of the sort.</i> They were both drunk, and mind reading while sober is a difficult art, at best. Did he coerce her? You could say that a 245 lb piece of sculpted muscle is a pretty intimidating figure to a girl who was, by all accounts, of normal size. I would even say that, as a moral question, the football player ought to have known better, and have gone to great lengths to make sure she was able to give 'informed consent.'

As a moral matter.

 As a legal matter, the case against the football player was tossed. Properly, in my opinion.  

Right. That does not amount to consent; her last word on the subject, (No) would still control; and of course she is not under a duty to resist. I shortened a much longer post and lost the (important) italicized bit.

If they mean that she got tired of hearing him beg for it, wanted to go to sleep, and figured he wouldn't last more than a minute or two anyway, and consented, that's another (consensual intercourse).

The point was, though, that we don't know what she meant by "persisted" and "eventually giving up," the terms upon which she appears to rest her case. And given her now-heightened awareness and knowledge of the whole subject, I would have expected more.

Well, some just like to have others read their stuff, but are averse to duking it out with people who think, or feel, differently. Others wait until the lines of force of the various arguments have become apparent, and then calculate their response.

I don't like either tactic, but I guess it serves their purposes.

But in this case, it has only been ten hours. Let's see what happens.

I know exactly what he was saying - the point is that he didn't know what he was saying. And what is a "real" rape?

As an aside, the legality of the issue doesn't concern me, the point is and will continue to be taking advantage of people who are powerless or disadvantaged. It is immoral to do so.

Who said there was a crime? Two drunk people having sex isn't a crime.

Well, Owenz said "writers," and I said "some people" but yeah, I think mebbe Valenti is as good as Gitlin, mebbe a little better, about sticking around. Graff is the real drive-by shooter, tho.