This is an interesting issue that I've seen come up recently. Incidentally, the law in this case is very severe in some states. I believe in MA that if a girl is intoxicated she is unable to give consent- sex is presumed to be rape. This may be true even if she has only had 2 or 3 drinks, which I think is going a little far.

I'm not sure I like what I hear being described as gray rape. Those situations sound pretty clear cut to me. But there are gray areas. When I was in college once I hooked up with a girl- no sex, but other stuff afer a fair amount of drinking. She was definitely an enthusiastic participant, but later she claimed not to have remembered. That freaked me out pretty good. Some people are much more prone to not remembering stuff than others, but I wasn't okay with that situation.

I noticed that some girls are a lot more interested at that stage, in 'having fun' after a couple of drinks, and that was really frustrating to someone not interested in pushing the lines of reasonable consent. That incident really drove home at least one realization for me: women weigh a lot less, so there's a pretty good chance that they're more drunk than you. (unless you really are a serious drinker, I suppose) If this makes it harder to arrange casual sex or make out sessions... well, just deal with it. There is a male culture out there that is totally at odds with this understanding. I don't know the best way to address this- it'll probably be really tough regardless.

"But there has never been any question in modern society that it is a crime to kill another person."

http://en.wikipedia.org/wiki/Violinist_(Thought_Experiment)

You open an interesting philosophical debate as to what it means to kill. When you say:

"I concede that there are different kinds of rapes (in that the circumstances vary), but I don't believe that "worse" or "better" rapes."

But isn't that implied? Is statutory rape between a consenting 18 and 16 year old really the same thing as a violent rape? If you're going to differentiate between degrees of rape, you have to draw the distinction between worse and not-as-worse rape --- especially if you're going to call an 16 year-old's 18 year-old boyfriend a rapist, because, technically it's rape.

I guess what's I'm not understanding is how you're vehemently opposed (period.) to gradations of rape (even though we already have statutory) but regard gradients of consent legally viable.

Actually, I contend that rapists ARE evil. Just because you don't act evil 99% of the time, I think, doesn't make you not evil. It makes you a good liar, and an even shittier person for not giving the people to find out what an ass you are before they get involved with you.

But that's a minor quibble.

I think that what disturbs me most about this account is how Moe says that she chewed him out afterwards and thinks that he "learned something." Yes. He did learn something. And you know what that something is? IF YOU RAPE A WOMAN, THE WORST YOU'LL GET IN RETURN IS A BIT OF YELLING.

I think that every woman absolutely has the choice whether or not to report her rape to the authorities. I respect Moe's choice to not report her rape, just like I respect every woman who makes that decision, though I do wish that women would report much more often. I do not resent the fact that that she did not report. Even if I wanted to resent it, I wouldn't have that right. But I do resent her assertion that giving her rapist a stern talking to somehow taught him something more than CALLING THE FUCKING COPS would have. If you want to enlighten your rapist, you should probably do it by reminding him that rape is a crime.

As for her idea to have women talk to men about rape so that they realize the severity . . . it seems strange, considering her desire to say that rape isn't really that big of a deal unless a second form of violence is involved. Her description of rape seems, in fact, to be the most common that I hear. Normally I would wholeheartedly support trying to get men to understand rape better, but it seems awful odd in this context.

Correction: should say "an even shittier person for not giving people the chance to find out what an ass you are before they get involved with you."

I do feel slightly more conflicted about the appropriate legal response to situations in which women (drunk or not) may not want to have sexual contact with someone, but also do not say "no," push back, or make any other outward indication that they are opposed.
If she doesn't want sex but isn't pushing away, what is she doing? Is she just lying there, not doing anything? Why would someone have sex with a person who isn't doing anything? Really, if she's not responding, she could be too drunk to know what's going on, she could be having a panic attack for mental health reasons, or possibly something else, but he shouldn't assume everything's fine just because she isn't talking. I have no problem with requiring guys to ask their partners if they're ok if they aren't doing anything, and making sure they're actually getting consent.

So introducing "degrees" of rape has the effect of diminishing the idea that it's a crime. Period.

As a legal matter, there are "degrees" of rape (the words may be different and may be set aside by are aggravating factors, for example), and the charges will differ depending on the circumstances. But if one person committed manslaughter and another committed 1st degree murder, we'd call both people killers. Same with rapists. If a person is sexually penetrated without consent, the person who penetrated the non-consenting person is a rapist.

Using a term like "gray rape" is harmful in two respects, one of which I think has not been discussed thus far. Yes, it disserves women who have been raped by acting like what was done to them is somehow not a crime. However, it also disserves men who are innocent of rape, conflating their non-rape actions with actual rape. If a woman does specifically consent and then regrets having done so, it's not rape, and it's wrong for a woman to claim that it's any form of rape, "gray" or no. Granted, I think this latter category is a much smaller subset of the total amount of "gray rape" examples I've seen, but if we open the door to some shade of gray between what is and is not rape, we open the door to men being called rapists who didn't actually commit rape.

As I said on the prior thread, women who think they might have been raped should get emotional counseling and legal advice. Whatever happened, it was a bad experience that affects one's sex life, and not dealing with it when it happens is a bad thing. Of women who get help, some will find they were raped and may decide to do something or may decide to do nothing. Some will find they were not raped, confirming their feelings on the matter and making it easier to get to closure on what was just a bad night, a cautionary tale. Either way, a woman will do better for herself and others by being honest and informed about her life.

And rape isn't something that's committed only by guys who are OMG PURE EVIL. Even if 99% of the time he's an upstanding citizen and all-around awesome dude, but he still wouldn't listen that one time when you said "no," he's still a rapist -- and it's still rape.

I beg to differ. If the rapist was totally aware that the woman was extremely intoxicated, or sleeping, or if the woman had explicitly said that she did not want to have sex, then he, at the time, was most definitely a vicious, malevolent person. I believe that, depending on the situation, rapists can reform, but at the time of the rape, if they were knowledgable of the situation, they are vile. Forcing someone to engage in sexual acts without their consent is probably the worst thing anyone could ever do to another person.

I apologize in advance if this comes out sounding wrong.

Joe said: "Is statutory rape between a consenting 18 and 16 year old really the same thing as a violent rape?".
Umm, no.
Where did you get that idea from?
No one has mentioned statutory rape, which by definition is a whole different ballgame.
What are you arguing for, exactly?

Statutory rape is a crime because even if an under-age person "consents" to sex, our societies believe that under a certain age, one cannot consent.

This is a completely different thing to acquaintance/date rape (the most common form of rape by a long shot) being considered less severe than stranger-dragging-you-into-bushes-rape (a statistically rare kind of rape).
I don't understand, Joe, just what your problem is with our opposition to the watering-down of acquaintance/date rape to be seen as a more benign kind of crime.
Thoughts?

Just so we're all clear:

New York Penal Law

Rape 3rd & Sodomy 3rd. Penal Law 130.25 and 130.40 – Class E felonies.

1. Sexual intercourse,

2. without consent

3. where the lack of consent is not due to "incapacity to consent." That is, the victim actually expresses lack of consent by words and/or actions during the incident. Use of force is not required. No means no.

The new definition of lack of consent in Penal Law 130.05(2) adds "circumstances under which at the time of intercourse, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the [defendant’s] situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances."

Gray rape? Give me a break.

JOE: "Statutory rape is a crime because even if an under-age person "consents" to sex, our societies believe that under a certain age, one cannot consent.

ANORAK: This is a completely different thing to acquaintance/date rape (the most common form of rape by a long shot) being considered less severe than stranger-dragging-you-into-bushes-rape (a statistically rare kind of rape)."

I thought the comparison was clear?

Statutory: We don't accept the 16 year old's consent because we deem her unable to consent.

Alcohol: We don't accept consent from the woman who was drinking because we deem her unable to consent.

The issue can sometimes be cloudy in the first case if the man has reason to believe she is above 18 (e.g., fake ID).

The issue can sometimes be cloudy in the first case because there is no clear standard for evaluating when the line changes from able to consent to unable (1 drink? 2 drinks? 3 drinks?), even if the consent is "enthusiatic".

I think we all agree that if a) a person says no, then the guy/girl should stop and b) If a person is staggeringly drunk, they are unable to consent.

What is less clear to me (the gray part) is how to determine when the point switches from able to consent vs. not. It's easy to say "if you've had any drinks at all than you can't consent" but many men and women certainly don't want to live by those rules.

Both those quotes are from me.

Whoops, Anorak, my bad - I thought you were replying to the post above Joes, which was talking about consent vs. not when drinking.

Here's my problem with the manslaughter/2nd/1st degree murder:rape/gray rape analogy.

With manslaughter etc, the emphasis is on the perpetrator's state of mind, premeditation, factors influencing him. It other words, the different factors that made him kill someone.

But with this 'gray' rape malarkey, the emphasis is entirely on the victim's end of things. Did she know him, did she have too much to drink, did she consent to making out but nothing further?

And what the hell does that have to do with anything? As has been pointed out here many times before, women don't get raped cos they were drinking and making out with someone. They get raped because they're in the presence of a rapist. None of the above factors influences the rapist's decision to force himself upon a woman (or man) without their consent. There is nothing fucking gray about it.

The guy who raped Moe was a rapist. She might not want to call him that, she might not want to use any of that terminology in relation to her or to him or to her experience, and that is her right - but, legally, it is still rape. And to suggest that we change the dictionary does a massive disservice to every woman (and man) who gets raped.

No worries UCLA ;o)
I was only replying to Joe, because I thought he/she was throwing in a bit of a red herring.

Dinogirl, Momo, WORD!

But in the end, I keep coming back to the idea that we need to strongly advocate for the idea of enthusiastic consent

Yes! In terms of preventing rape, this is the key point that needs to be popularized.

I've heard some women complain that positive consent is a turn-off and men need to "read the signals." The only reliable signals are "yes" and "no," positive consent needs to be the norm.

When I first saw the header of "gray rape" on Feministing, I thought it was some disgusting term for an outbreak of rape of the elderly. Largely because "gray rape" doesn't exist, and I figured that was the only possible thing that you could be talking about.

I think Joe and UCLA make some good observations. Not many things are black and white, and I don't really see why rape should be. Every situation is unique... I don't think any of us want to live in a world where a guy can wake up in the morning next to a girl who, when they were both intoxicated, gave "consent" but maybe not "enthusiastic consent" but maybe neither can really remember, and end up in a jail cell for 30 years next to the guy who violently rapes just for kicks. I accept rape as a very serious, underreported, under-punished crime that demands more attention and educated than it gets - but I also see it as just as "gray", that is, not black-and-white, as most everything else.

LOL at "...end up in a jail cell for 30 years..."

Nobody here or at Jezebel is claiming REGRETTED SEX = rape. But waking up to find a man pounding you means you're being raped. Being penetrated even though you're too out of it to speak or nod your head means you're being raped. Stop it with the "what if she just regrets sleeping with him" bullshit. It's a distraction and nothing more.

Clearly,this an attempt to make rape socially acceptable in certain situations. And obviously it mustn't be.

"With manslaughter etc, the emphasis is on the perpetrator's state of mind, premeditation, factors influencing him. It other words, the different factors that made him kill someone.

But with this 'gray' rape malarkey, the emphasis is entirely on the victim's end of things. Did she know him, did she have too much to drink, did she consent to making out but nothing further?"

Excellent point, Dinogirl.

This thread needs a group viewing of "Superbad" to properly continue this discussion, specifically a thorough dissection the Evan+Becca bedroom scene.

I'd call it "regretted sex", but by the new proposed definition of "enthusiastic consent", who knows? What happens when nobody remembers the details?

It's not clear, and that's the point. I don't want to come off as an apologist for drunken assholes (I've made it through my early twenties without anything but enthusiastically consensual sex and obviously I intend to keep it that way), but I just don't understand the purpose of trying to cram a menagerie of complex situations into one binary. I don't think anyone benefits from that.

Jeff, I know that you didn't want to "come off as an apologist for drunken assholes," but I really don't think the whole "intoxication" scenario is that complex of a situation. If you black out as a result of drugs or alcohol, and you get in a car and kill someone, you're still a killer. If you're intoxicated and you molest a child, you're still a molester. If you're drunk and you rape someone (whether they're coherent or not), you're still a rapist. And I think many other posters have made that point much better than I have.

But when a rapist is shitfaced drunk, it just means they have a substance abuse problem as well; it doesn't make rape a "complex situation," nor does it excuse rapists from their actions.

What you say about "no" is simple. I agree with it, and everything else you say about rape.

The thing that you will never get around with rape, however, that makes it such a fundamentally controversial subject, is the he said/she said nature of it all.

In most rapes we get physical evidence and other corroborative evidence. But in some cases you end up with, "who do you believe, him or her?" Throw alcohol, wild people, etc., and you have a hung jury. People are reluctant to throw others in jail, believe it or not, when they are not satisfied beyond a reasonable doubt.

And while I have no doubt most women who claim rape are being honest and were indeed raped, the inescapable reality remains: we only have her word to go on (sometimes).

I would think that most reasonable people would agree that once the word "no," or other such actions that indicate as much are uttered or undertaken, then it is game over for the dude.

But what happens when we can't show the "no" was ever said?

Consent is not the issue, proof beyond a reasonable doubt is.

In other criminal trials, things are usually straight forward. Indeed, in many rape trials/cases it is also straight forward. But sometimes you end up with nothing but a woman's word, "I said no." Throw in the other factors I eluded to, and many others, and a guilty verdict gets harder and harder.

Make no mistake: I am not making any rape apologist argument, simply that rape is a unique crime that carries with it unique complications.

I understand the desire to respect the victim of a rape's definition of that rape, however, I believe that what happens for a lot of women is that labeling aquaintance/date rape as rape is a very difficult process. It may feel as though you are taking something away from those women who narrowly escaped with their lives if your rape was not violent. However, even when it is not violent, it has lasting emotional and physical consequences. The idea of gray rape by its name, simply implies that it may or may not actually be rape, and this (even with enthusiastic support from victims) to me is unacceptable. It is so important that feminists/other supporters insist upon not "gray" labels so that women who have experienced it can eventually label their experiences when they are ready with a label that names it for what it is.

"If you black out as a result of drugs or alcohol, and you get in a car and kill someone, you're still a killer. If you're intoxicated and you molest a child, you're still a molester. If you're drunk and you rape someone (whether they're coherent or not), you're still a rapist."

I don't see how any of that is relevant to his point. No one here (presumably) thinks that it's okay force someone to have sex with another person when you are drunk. No one is arguing that.

What they are saying is that it isn't clear what amount of alcohol renders a person able or unable to consent. Can a person still consent to sex if they've had 1 drink? 2 drinks? 3 drinks? Can a "buzzed" person consent?

Even if you were to create some formal rule (e.g., a person whose blood alcohol is greater than .05 can't engage in any contracts - sexual, business, whatever), you then have the ambiguity of how the partner can reliably assess this.

Some people's response to this is to simply say "if you've had any drinks at all, you're not able to consent". But obviously many people feel they can consent if they've had X number of drinks - do you have the right to tell them they can't?

We all agree that there are a wide number of situations that are clearly rape, that a woeful number of cases are prosecuted, and that many women are horribly harassed when they try to seek justice for their assault. But that doesn't mean there are areas where sometimes it can be difficult because people have different opinions about when they can and can't consent.

The "enthusiastic consent" idea may be fine for first time hook-ups, but what about long term relationships? Sometimes you're feeling tired, and you consent because you want to please your partner. In those cases it can be hard to muster much enthusiasm, though one tries wearily. That's not rape. It's not even gray rape.

Sometimes we do things to be nice, and not because we really want to. Isn't that okay? What about "altruistic consent."

Please forgive me if this has already been noted, but many (probably most) rape victims do not protest during the assault. No saying 'no,' no kicking, pushing, punching or otherwise fighting back. They freeze. They do the best they can to survive in the moment, to get through a situation in which they have absolutely no control. To relent is not the same as consent.

I have no problem with saying that sex with someone when they are too out of it (or too scared) to actively dissent is still rape. I do think you run into difficulties when you argue that someone is unable to consent if they are drunk (even if they are enthusiastically consenting at the time). To me that sounds like regretted sex rather than anything else. It would also presumably apply to men being unable to consent when drunk as well - with the result that in a large number of situations each of the people involved would be deemed to have raped the other.

Certainly a drunk crime is still a crime, but I was referring to how that makes consent more complicated.

Consider the crime of killing someone. Yeah, yeah, no matter how you could still accurately be called a "murderer". But there are wildly different punishments depending on what happened. A pre-meditated, first-degree murder can get someone locked up for life. On the other hand, I knew a guy who punched someone out in a bar fight, the guy hit is head on the ground and died instantly. He was in jail for a couple of months, and I don't think that's wrong.

Not that you can "accidently" rape someone (well, actually, wasn't there the whole thing about sleep-raping? bogus? maybe, but complicated at least), and I think the crime of rape can be similarily broad.

I can actually imagine a pretty limitless number of situations that are varying seriousness of rape. This is probably going to stir up some shit, but well, I guess that's the point of discussing it, and I certainly may be wrong.

- say two people are hooking up, the woman changes her mind and says "no". The guy maybe doesn't notice right away or just doesn't quite get the message at first and doesn't quit for say, I dunno, 20 seconds. That's 20 seconds of rape. Is that the same as a violent, pre-meditated rape?

- Boss says, "have sex with me or you're fired". In a sense, it's forced. Is it the same as every other kind of rape?

- Date rapist slips a roofie. The woman wakes up having been raped. This is the most henious, I think, of the three - a serious crime and the bastard should be put away for quite a while. But I would argue that compared to a violent rape, the trauma probably isn't quite the same, and that's a factor that's considered in murder cases, I believe (correct me if I'm wrong).

I think this could go on pretty indefinitely. Once again, my point is not to minimize anything (I can't really begin to imagine being a victim of this crime), but only to point out that there are many scenarios that are not equal.

Now, maybe the term "gray rape" is a shitty one because it implies that some scenarios are "not rape". I'm more concerned at pointing out scenarios that *are* rape, are different.

I do not consider all people who have committed manslaughter to be "killers." I'd be more likely to call someone who killed in self defense a "killer" and he/she would not be guilty of any crime. To me "killer" suggests intentionally killing another person, which is not usually an element of manslaughter.

This is just to say that grey areas exist in many areas of the law, not to mention in the use of particular words and language. Just because grey areas exist does not mean that a term like "grey rape" is a useful category or concept. Or, if it is useful, that people would necessarily agree on what the grey areas are.

The scenarios we're discussing, Jeff, are implying that the woman is clearly saying NO repeatedly, and the guy proceeds. At least that's what Moe presented. It was said to him, repeatedly. He still continued.

The boss saying "have sex with me or you're fired" scenario is well-known as sexual harassment, but it isn't rape. It is, however, still prosecutable.

To me, drunken consent is not that complicated. It still follows the standard of enthusiastic consent. I've had sex while drunk, but I've always been actively into it and it's been good times. On the other side, if a woman (or a man, for that matter) isn't actively participating, then she's probably too drunk to consent and you should either back off or establish clear, verbal consent. Now, there could be problems later figuring out exactly what happened, especially if one or both people can't remember clearly, but that doesn't make the actions gray, it just means we're not sure what exactly happened.

Jeff, all rape is not the same. In fact, I'd probably say that each rape is different. But, I don't think you can make a scale where drugged rape is better/worse than coerced sexual harassment rape (personally, I think I'd rather be unconscious, but I've never been raped so I may have no idea what I'm talking about). Sure, violent rape is worse, but that's kinda like saying that violent mugging is worse. Violent rape is like two crimes (assault + rape), but rape is still rape, and while there's many different kinds you can't really put it on a scale.

People always get really weird about "mind-changing" rape (and yes, it's still rape, like any other kind). It's like they think a woman might quietly say no, and he might not hear her and keep going, and that's what we're talking about. Well, no, that's not really how things happen. Myself, (TMI territory!) I have personal lubrication issues, and sometimes sex will hurt and I have to stop it early. When I need to stop, I don't quietly say "no" and lie back while in pain because he didn't hear me. I clearly say "Stop" or "We need to stop" and push up on him, and repeat as necessary so it's clear to him that I need to stop. Every guy I've been with has stopped almost instantly. It's not that difficult. Really, how long could you you continue while a girl is telling you to stop and pushing you away? For most people, their morality would kick in almost instantly. So don't worry, it's not like you could be dating a capricious girl and she changes her mind and you're a rapist. If she needs you to stop, you'll know, and you will. Any man who doesn't stop in that situation is a sick, sadistic jackass who deserves the moniker of rapist.

And while I have no doubt most women who claim rape are being honest and were indeed raped, the inescapable reality remains: we only have her word to go on (sometimes).

And why would we ever believe a woman? Women are notoriously lying sluts, after all.

(For fuck's sake. *eyeroll*)

Actually, I would argue that using the force and power of your position as a boss to force someone to have sex with you is, in fact, rape. There are many kinds of force, after all, and physical force isn't all that exists. Some rape laws explicitly note this. Sure, she could quit. But the woman faced with a knife or gun could choose to take her chances with that as well. When you have no acceptable choice to say no (you need the paycheck, you can't get another job quickly, you have kids to feed, etc. etc.), then you've been raped. Period. Doesn't matter if it's because you're in fear of your life, in fear of a beating, or in fear of getting evicted for non-payment of rent.

And, Jeff, as someone who's been drugged and sexually assaulted...fuck you. (A) You can't compare the trauma of different kinds of rape and say that one is not as bad as the other. Anytime control of your body passes from you to another person who uses it against your will, you've been fucking traumatized. (B) There's a special kind of hell in knowing that, not only could you not stop the guy from doing what he wanted with you, but you didn't even get the chance to try. Not worse than the hell of other situations, not better. Just different.

The point is that no woman should have control of herself taken away. Ever. Under any circumstances. If a man sticks his penis into a woman without her willing consent, that's rape. Period. No discussion, no negotiation, no wavering on the part of other people changes that fact. The woman has been raped. The man is a rapist. There's nothing gray about that.

Someone close to me shared her experience of what Cosmo calls "gray rape" and it was clearly rape. The only reason it wasn't rape was that it took place 30 years ago when husbands could demand and force sex without penalty.

Great post Ann. You set a great example for respectful disagreement. I feared this would turn into a flame war, but you showed that women are abundantly rational. And how refreshing to read that you're conflicted about when the drunk party doesn't say "no." Just waiting for the inevitable battlecry: "SLUT SHAMING!!!"