I had a bad night a couple of months ago. It started out superfun, my buddy and me drinking one, two, and then the ill-advised third Manhattan at this sweet little amber-lit bar in Fort Greene. We probably should have called it a night, but my place was so close. I vaguely remember some wrestling around, and then I was waking up, with a crushing headache and little recollection of what had happened a few hours earlier. Did I say something idiotic? Did we have terrible or great sex or no sex? Out walking off the hangover, I sent my friend a message in which I apologized for passing out, and asking him to next time maybe cut me off after two drinks, thanks.
You know what I didn’t do? I didn’t call Gov. Andrew Cuomo and ask him to intercede, to say, “I don’t remember what happened but maybe it was bad, and if so, maybe someone needs to account for the fact that I drank too much and I’d prefer that person not be me.”
I didn’t not call Cuomo because there are few things that I fear more than having the government dictate modes of private behavior (though I do fear this), or because I knew that if I just bided my time he would come and find me, without any invitation, once his latest crusade to safeguard women took effect. Thanks to New York’s watchful governor, a new proposal will close the “intoxication loophole” in the state’s rape law, thus amending the definition of who can give legal consent to sexual activity by excluding people who have voluntarily gotten drunk.
That’s right: From now on, you will not be the ultimate arbiter of your own bad or good choices, at least not without fear of prosecution. We’re not talking getting roofied at a bar—current penal laws already list “mentally disabled or mentally incapacitated” (as well as “forcible compulsion,” “incapable of consent by reason of being physically helpless” and being below certain age thresholds) as reasons why a person cannot consent to have sex. We are talking ipso facto being considered incapable of giving consent due to having consumed alcohol. Should you choose to go ahead and have sex while drunk, you will by default be seen as a victim (or perpetrator) driven by what you wanted at the time, a person, in the charming words of Manhattan District Attorney Cyrus Vance Jr., “unable to control his or her conduct due to that intoxication.”
I appreciate that “his or her,” and it’s true that in 2012 New York state expanded its definition of rape to include male victims and sex acts other than vaginal intercourse, but let’s be clear: The new law is aimed almost entirely at protecting women, if by “protect” we mean robbing them of agency, if we mean stop trusting them to make their own decisions, if we mean the same old garbage attempts to control women’s behavior, this time prettied-up to look like caring, to look au courant, to further embed the idea that being female is a special onus which requires special female-only laws.
To which I say, good luck navigating that road. Need I go into the calamities that can occur when you start making laws that apply to only a certain class of people based on claims of dubious provenance or immutable characteristics? Or the horrors forced on women (and gay men) in some parts of the world in order to “protect” them and others from their sexuality? And that’s without getting into the truly nightmarish possibilities opened up by the state establishing a standard of consent based on levels of intoxication that can’t possibly be established with any certainty.
As to who henceforth gets to decide if a woman was or was not in her right mind when she gave consent, the law does not specify, nor how and when her insobriety will be measured; one imagines a business opportunity for the bedroom breathalyzer, and maybe new blue laws for women only, a day (or five) a week when they are not allowed to drink, or a special curfew a few hours before last call. Or foot-binding. This last might make it hard to run from a potential predator, but it might also make it tough for a gal to get to the bar so, problem solved.
Hold on, hold on, I hear you saying; what about the girl who drinks too much and is assaulted by a stranger, or an acquaintance, the girl whose situation is not a matter of falling into the sack but getting pushed behind a dumpster? Absolutely we need to protect her. How about with laws that don’t start with political theater and rot?
Let’s begin with the fact that there is no such thing as an “intoxication loophole.” The rape statutes in New York state already allow anyone to press charges, no matter how inebriated she (or he) is at the time of the assault. The statement from Cuomo’s office that current law “does not adequately protect victims of sexual offenses who could not consent to sexual activity due to voluntary intoxication” is untrue, or true only in the sense that the law does not specifically list “voluntary intoxication” as a category in which someone is unable to give consent. It also does not list “while playing hockey” or “baking brownies,” though during these voluntary activities someone also might not give consent. Should we list these, and if so, who decides what other things women are not capable of deciding for themselves?
As to the genesis of the statute, it was first brought to Cuomo in 2018 by District Attorney Vance, himself trying to wriggle out from under an onslaught of bad PR for having failed to prosecute accused serial predators Dominique Strauss-Kahn and Harvey Weinstein and, more recently, Jeffery Epstein. Might the compassionate-seeming statute be a way for Vance to distract from his abysmal record, as well as shine his own star in advance of his being up for reelection next year? His primary challenger, Assemblyman Dan Quart, thinks so, last month telling the NY Post, “It’s not a loophole, the rape statutes one and three definitely allows a prosecutor who wants to prosecute rape cases, to prosecute. Cy Vance just doesn’t want to.”
There were 6,708 reported rapes in New York state in 2018 (a number that more than doubled starting in 2014, due to the expanded definition of what constitutes rape), out of a total population of 19,540,000. While it goes without saying that one rape is too many rapes, changing the law that affects 100% of the population to potentially forestall what happens to 0.034% of us will, as nanny-state laws always do, create more problems than it solves.
For instance, what happens if both parties are drunk? Whose word will take precedence? What if the parties remember things differently? What if they don’t remember things at all? How will the law square that someone cannot be trusted to give consent but can be trusted to know she or he did not give consent? What happens when “it seemed like a good idea at the time …” meets that morning moral hangover? What about claiming to have been drunk when you weren’t? What about when a rape charge obscures a more complicated situation? What happens when the courts are so clogged with voluntarily incapacitated cases that other rape cases have to wait, or see its victims shunted and the uphill slog to justice made that much harder?
Let me be clear: I believe women have historically been disbelieved when it comes to rape; that the backlog of rape kits in this country is vile beyond words; that the most vulnerable among us must be protected. But I will not pretend that telling women what they are allowed to do with their bodies, and when, is about safety, or freedom, including the freedom to have sex, drunk or not, that you might later regret (or forget). Aside from almost every adult I’ve known, I do not have data to support how often regret-sex occurs. Guess what? The governor’s office doesn’t either, but he, unlike me, is willing to criminalize it.
Oh wait, I do have data, if circumstantial and gathered after I read an essay by Meghan Daum, later adapted for her 2019 book, The Problem With Everything, wherein she asked women: “Raise your hand if you’ve ever coerced a man into sex even though he didn’t seem to really want it?” Instead, I asked four guys if this had happened to them; they all said yes. The next day, I asked four more. Three said yes; the fourth asked, “Is this a rhetorical question?”
None of them brought rape charges against the women, though under the new law one imagines they might, if not quite the reception they’ll receive for doing so. It might make them appear out of control, or afraid of what happened in the dark, or make them look like victims, and who wants that?
“[W]hy do so many young women seem so willing to recast unpleasant or regrettable sex into violative sex?” Daum asked in a separate essay. “Is there something more intrinsically satisfying about seeing yourself as a victim/survivor rather than a normal human capable of making mistakes that might result in unpleasant situations that leave you feeling icky for a while?”
Why do they? Why would anyone want a law that further entrenches the idea that women are victims, including of our own sexuality? Such victims, in fact, that we require the guardianship of protective men like Cy Vance and Andrew Cuomo. Is there not something a little patriarchal about having our desires, when drinking and having sex is our desire, winnowed away by the legislature and policed by male authorities who believe that, unlike the boys, we cannot drink and have sex and feel bad in the morning without having the government ready to step in and save us from our own decisions? I find it both patronizing and insulting to be told I will not be held accountable for my part in the action, that the law’s going to take care of that, that I need not worry my pretty little head.
To which I say, Gov. Cuomo, stay the fuck out of my bedroom.
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Nancy Rommelmann’s work appears in the LA Weekly, the Wall Street Journal, The New York Times, Reason and other publications. Her most recent book is To the Bridge, A True Story of Motherhood and Murder. Follow her on Twitter @nancyromm .