American Rape Laws Make No Sense

Who else would have sex with an incapacitated partner besides a rapist?

Last week, hundreds of women rallied at the Minnesota capitol after the state Supreme Court ruled that it isn’t rape to have sex with an unconscious woman if she’s gotten drunk voluntarily. It’s only rape, the law says, if a victim is intoxicated on substances or alcohol that have been “administered...without the person’s agreement.” 

Sure sounds like a fancy way of saying drunk women bring it on themselves. 

Minnesota’s law isn’t an anomaly; the majority of states in this country have similar policies around intoxication and consent. In addition to blaming the victim, these laws defy basic logic. Who else would have sex with an incapacitated partner besides a rapist?

Does anyone really believe that a person who can’t stand up on their own is capable of consenting to sex? Or that it’s perfectly fine to penetrate someone who is passed out drunk? 

It’s unconscionable that American laws haven’t caught up with the truth about sexual assault.

Up until a few years ago, for example, states like Maryland had laws that said it wasn't rape if a woman withdrew consent during sex and the man kept going. It didn’t matter if she was in pain, or scared, or simply just wanted to stop. And there are still multiple states with laws that define spousal rape as using force or violence—meaning a man can rape his unconscious wife and not be considered criminally responsible

What’s so frustrating—in addition to the blatant misogyny—is that there’s no excuse for our legislation to be this far removed from reality of rape. Beyond common sense, Americans have decades of anti-sexual violence research to rely on. 

Take the law in Minnesota, which assumes alcohol and substances are only wielded as weapons in assaults if they're deliberately and surreptitiously given to victims. Studies and experts actually make clear that rapists seek out drunk women—both because they're easier targets and they're less likely to be believed. How the victim becomes inebriated is irrelevant. (And despite bad faith arguments that posit ‘what if both people are drunk’, research also shows that even drunk rapists know what they’re doing.)

But what’s just concerning as the legislation lag is that mainstream culture also hasn’t caught up on the truth about rape. Despite progress made, too many Americans are still rape illiterate: Victim-blaming myths persist in the media and beyond, legislators show little understanding of sexual assault, and young men are largely unaware of what rape really is. 

I think often of a teenage witness in the 2012 Steubenville rape trial who walked in on an unconscious girl being assaulted. When prosecutors asked him why he didn’t stop the attack, he responded, “I didn’t know exactly what rape was. I thought it was forcing yourself on someone.” 

The same young man had taken car keys away from a drunk friend earlier that evening. If we’ve managed to teach every U.S. teenager that drunk driving is dangerous, surely we can also relay the message that passed out women can't consent to sex. 

All of this should be straight-forward. Still, whenever feminists try to move the country forward on sexual violence issues—even in the most basic ways—it’s treated as controversial. 

When ‘yes means yes’ and ‘enthusiastic consent’ policies became the norm at schools and in some states, for example, there was an outcry from conservatives that activists were trying to overhaul sexuality or criminalize male desire. 

But what’s so radical about teaching young people that they should only have sex with partners that actively want to?

This is hardly the stuff of feminist zealotry—but in a country hellbent on keeping women in their place, reasonable advancement is treated like extremism. 

American laws and attitudes on rape should reflect what research shows is true, and what our own common-sense tells us. Perhaps the real fanatics are those unwilling to listen to reason.