Impaired Consent and Rape

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A person impaired by alcohol or drugs is necessarily incapable of fully and freely consenting, and the mere absence of objection (i.e., silence) doesn’t mean consent has been given. Only “Yes” means “Yes.”

Lately, a lot of media attention has been given to the allegations made by several women against the iconic comedian Bill Cosby. This attention comes at the same time Rolling Stone magazine published (then partially retracted and uncharacteristically apologized for) a bombshell article on the “culture of rape” on some college campuses. Perhaps one bright spot in all the recent media frenzy is the renewed attention being given to the issues of impaired consent and rape.

Having served on a commission dedicated to rape prevention, supervised programs for sexual offenders, and provided support services to those who’ve experienced sexual assault, I’m well acquainted with some of the devastating effects this heinous boundary violation can have on victims. The effects can last a lifetime: difficulty trusting, feelings of being marked, unwarranted and toxic feelings of shame and guilt, intimacy fears and difficulties, etc. I also became acutely aware of the shocking scope of the problem. The stats are indeed chilling: as many as one in four women in the U.S. report experiencing some form of sexual assault during their lifetime and as many as one in six report having been forcibly raped. Rape is not only a big problem but also, historically, an under reported one. Despite the fact that some real progress has been made in recent years in reducing both the incidence of rape and the hesitancy of victims to report, the occurrence rates for all forms of sexual assault remain unacceptably high. So, the fact that rape and especially the issue of consent are being talked about so seriously once again is in many ways very good news.

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While the exact definition differs from country to country and from state to state within the U.S., there are some commonly accepted perspectives on what constitutes rape. In the U.S., regardless of the formal title afforded the offense, rape is generally defined as sexual contact or penetration achieved without the person’s consent, or by the use of physical force, coercion, deception, or threat, and/or when the person (victim) is mentally incapacitated or impaired, physically impaired (due to voluntary or involuntary alcohol or drug consumption), asleep or unconscious. As is evident from such definitions, the central issue involved in rape is the issue of consent.

If a person assents to sexual activity under any kind of duress (e.g., physical or emotional threats), they haven’t freely or willingly consented, and therefore the activity constitutes rape. Similarly, a person impaired by alcohol or drugs is necessarily incapable of fully and freely consenting (even if the impaired person says “yes” at some point). The mere absence of objection (i.e., silence) doesn’t mean consent has been given. For these reasons, some college campuses (in California, particularly) have been tightening up their codes of conduct as well as the language in their policies that pertain to consent, moving from a “No” means “No!” narrative to a narrative of “Yes” means “Yes” — only a clearly free and unequivocal granting of permission constitutes consent. All too often, raucous campus parties and off-campus bar gatherings have led to complaints of sexual activity that occurred under some level of coercion, as the result of deception, or despite expressions of dissent. (Perhaps there’s nothing as insidious in the consent debate as the longstanding popular notion that when a woman first says “no,” she’s really just trying to come across as a “good girl” and expects her pursuer to show genuine interest by persisting.) This makes college campuses one of higher risk venues for rape. (You can read about one of the more egregious examples of this reality in my article “Empathy in a Lock Box: The Steubenville Case”). So by making clearer statements about what constitutes consent and tightening policies and sanctions related to substance use and sexual activity, these schools hope to create a safer environment for their students.

In The Judas Syndrome I tell the story of a drug facilitated rapist — actually, the vignette I present in the book is a “composite” profile, one based on many similar cases and with circumstances and names changed to preserve anonymity. Eerily, the allegations I mentioned above against Cosby fit the profile all too neatly. Cosby’s defenders would argue that because the profile is so common and also so well known, all a false accuser would have to do is make claims in line with the profile to make their assertions sound believable. His detractors, however, argue that it’s extremely unlikely so many women would make so many similar claims and not be telling the truth. They argue further that Cosby is just another of many sexual predators exhibiting this pattern of behavior but that he has been more immune to discovery and prosecution than most because of his status, public image, money, power, and access to the best legal help available.

Because of the statute of limitations, we may never learn the truth about Cosby. But the more insidious reality is that every single day somebody somewhere is plying someone else with drinks and other substances in the hopes of being able to secure what they might otherwise be firmly denied. Regardless of how some choose to see it, having sex with someone too impaired to freely and clearly consent is not just business as usual on the party scene. Rather, by definition, it’s rape.

All clinical material on this site is peer reviewed by one or more clinical psychologists or other qualified mental health professionals. This specific article was originally published by on and was last reviewed or updated by Dr Greg Mulhauser, Managing Editor on .

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