She Drinks, She Flirts, She Passes Out … Is It Rape?

Around midnight at a college party, several young women soccer players are alerted that a 17-year-old girl is barricaded in a room with eight guys on the baseball team. Through a window, the women glimpse what looks like an assault.

They batter down the door and, as the men disperse, find a young, semi-conscious woman on her back, unmoving and naked from the waist down. Vomit trickles from her mouth down the side of her face and collects in a pool. Blood runs from her genitals. She mumbles, “I’m sorry.”

The women lift up the teen, wipe the vomit from her face, carry her to their car and drive her to a hospital. The next day, the girl remembers nothing.

This is the scene the soccer players and other witnesses describe at a De Anza College party in San Jose four years ago. Is it rape?

The case has just been tried in civil court because the Santa Clara, Calif., district attorney felt there was not enough evidence to criminally prosecute, since all involved were drunk.

In civil court, witnesses for the defense supplied other details. Earlier in the night, the girl was drunk and flirting. She rubbed up against a young man and grabbed his genitals. She performed a bawdy lap dance in front of other party-goers. She made a graphic sexual invitation.

Is it rape?

Today, the jury in the civil suit found the defendants not liable on any of 10 charges, including two counts of rape. I am not surprised.

I am not surprised because as a culture we are sorely unaware of the dynamics of rape and its motivations.

But I believe a rape did occur, and here’s why.

Rape is sex without consent, plain and simple. In this case, the plaintiff argued that there was no consent because the woman was intoxicated, unconscious, or both. Everyone agreed that six or seven hours after the alleged assault, the young woman’s blood-alcohol level was at least twice the legal limit for driving under the influence. However, unlike drunk-driving, there is no legal limit at which a blood alcohol level automatically indicates lack of consent. Hence, the plaintiff and defense argued over the timing of the teen’s peak blood alcohol level.

The defense expert testified that the teen had not reached peak blood alcohol level until after she had left the bedroom, while the plaintiff’s toxicology expert testified that she had reached peak level while in the bedroom. So expert evidence is contradictory.

However, when the soccer girls found the young woman, they say she was passed out on the bed and in need of help to rise up and walk to a car. That sounds like “peak level”–or at least, a level at which consent was impossible–before she left the bedroom.

Rapists rape for different reasons. Gang rapes, which are most common among sports teams, fraternities and criminal gangs, are often male bonding rituals meant to degrade a woman as men enact male superiority.

This was sex with a nearly comatose girl, an object–a sex object–used by others. The whole scenario looked more like a degradation ceremony than sex. One man left the room and told a friend, “There is a girl … basically getting gang banged.” Yet when the soccer players forced their way into the room, another man allegedly branded the teen, “a ho” who “wanted it.”

Another young woman came forward to say that one of the baseball players had raped her in the same small room 10 weeks before. But his insurance company settled last week, making him no longer a defendant and testimony about him inadmissible.

Defense attorneys asserted everything was on the up-and-up, insisting, “If it weren’t for the soccer girls, we wouldn’t be here.” The plaintiff rebutted: “If it weren’t for the soccer girls, the attack would have continued,” adding, “For how long? Hours? Would she have woken up in the morning?”

Some still, horrendously, blame the victim: She should have known better than to let herself get drunk, they say. The accused insisted she invited the behavior. She had propositioned the men.

Was the teen an unwise, and possibly troubled, girl? Maybe. Was she raped? By any reasonable standard, yes.

This post originally appeared in the Ms. Magazine Blog April 8, 2011

Related Posts on BroadBlogs
Yale Fraternity Chants “No Means Yes.” Men? Or Scaredy Cats?
Cheerleader Ordered To Cheer Her Rapist, and Other Stories
Frats Invite Sluts, Bitches; Women Accept Degradation. Why?

About BroadBlogs

I have a Ph.D. from UCLA in sociology (emphasis: gender, social psych, women's psych). I currently teach sociology and women's studies at Foothill College in Los Altos Hills, CA. I have also lectured at San Jose State University. And I have blogged for Ms. Magazine, The Good Men Project and Daily Kos.

Posted on April 8, 2011, in feminism, gender, objectification, psychology, rape and sexual assault, sexism, violence against women, women and tagged , , , , , , , , , , , , , , , . Bookmark the permalink. 23 Comments.

  1. Has there been a move to define how drunk is too drunk to give consent? There is the limit for driving – you’re found over, you’re getting a ticket or possible jail time. I think there should be an agreement, made into law, about alcohol limits and consent. This would cover rape as well as things like poorly done 2am tattoos. If it covers all types of consent, not just rape, it may be more regulated and followed up – which would be beneficial for cases such as this. It may also give pause to some about committing non consensual deeds.

    Also, while I have only been throwing up drunk once, each time I’ve been drunk/buzzed, I still very well know what is right and what is wrong. I may do inappropriate or wrongful things, but I still know they’re wrong and I know I may have to face consequences afterwards. I had figured this would apply to others?

    An aside, she shouldn’t of grabbed anyone one’s genitals. This is not saying she “caused” it, but no one should be grabbing anyones genitals unless you are in a consensual relationship.

    • I’m afraid there has been no move to define how drunk is too drunk to give consent. A DA friend of mine says it’s difficult to do so because different people have different tolerences, with some people performing pretty well w/high alcohol intake. Yet we still have the limit for driving. Perhaps some clear alcohol level affects reflexes that are crucial to safe driving? But you have an interesting idea to explore.

      And you’re right, she should not have groped the men. Really, the men could have accused her of sexual assault, too. But while she may have also assaulted them, I’d still call this situation rape.

      • Thank you for your reply. I agree with you that it’s rape as well. :)

        I think it’s a load of hooey that we can have an immovable (per province/state) blood alcohol number and not anything for consent. It *does* affect people differently but that doesn’t stop the law for fining someone for driving, who is completely coherent, who has X% of blood alcohol level. I very well might pursue this further. I enjoy heckling politicians.

      • Please, be my guest!

  2. lakeista eaton

    This is still rape because she did not consent for any of those guys to have sex with her, although she was alittle flirty. Alcohol played a big role i am sure in the way she was acting, however she passes out and they take advantage. If she had been awake and allowed them to then i would say no its not rape.
    True she shouldn’t have been drinking but come peer pressure is heavy at that age.

  3. You really have to question where our society is heading when clearly inebriated behaviour is taken as consent to sex.

  4. What a horrid story! I really believe it does not matter what a woman is wearing, does not matter if she is intoxicated, and certainly does not matter if she is alone, in a strange place, or what flirtations she may or may not have made during the night. A women should not have to expect to be raped as a consequence of these other actions. Females should not have to police their own actions in order to avoid getting raped. Would these same judgements be applied to a man were he the victim? Check out my blog posting about a male police officer who was raped.

  5. Being a female college student and seeing the kinds of things that happen at parties, whether or not the girl was flirting, I guarantee she never once thought, “I’m going to be raped tonight.” Now, I understand with alcohol in both the girl and the guy(s) involved creates a serious point in the case but rape is not sex.. Rape is a violent crime. Sex is an act of pleasure or love in which bloody genitals never result from. I agree the girl put herself out there by giving lap dances and flirting but many girls at that age don’t know their limit with alcohol and can easily loose track of how many drinks she has had. No matter what, if a female is not coherent or at the point where she is vomiting from her mouth and not waking up is a good indication that she has no idea what she is doing and should get help rather than be brutally raped. Men have a lower tolerance than woman regarding alcohol so I find it hard to believe the guys didn’t know what they were doing, especially if they were able to take her clothes off and be standing over her. She was raped. End of Story.

  6. If the individual was not in control of her facilties while these adult men were having sex with her, she was raped. Her previous actions of lap dance or touching genitals does not entitle the men to rape her. If the girl was vomiting and unable to get up on her own she was not in control. When the man who retorted that she was a ho asking for it and proceded to block the room and told the soccer girls to mind their own business seems a bit strange, like he was hiding something. Can those men really stand up and look people in the eye and say that a girl with vomit in her mouth and bleeding genitals was a willing participant?

  7. Wow that is an alarming collection of stories. In my opinion any time sexual intercourse happens while the receiving party is intoxicated without prior approval is rape. I can’t imagine any person willingly consenting to the group activities that poor girl at De Anza experienced. The fact that her blood alcohol level was two times the legal limit means that she was not able to effectively defend her personal morals and well being. She should have had a buddy with her so that she did not get into this situation. All teenagers mess up somehow while they are growing up and experiencing things, I think its just a matter of having friends and family around you to help you realize what you are doing.

  8. I have to agree with your verdict on the situation. Rape is Rape. The bigger issue here is when it comes to rape the men involved never seem to take responsibility for their actions. The simple fact is you know when a girl is too drunk to really consent to anything. No one can act sober when intoxicated.

    In court cases like this one you always hear of the victim being made into the bad guy. The victim of rape is always made it out as if she asked to be raped. People blame rape on the person that was victimized and it is wrong. If it is a teen being raped or a young adult we blame her/him but if it is a child or a senior citizen we see rape for what it really is.

    Rape is one of those things where many women don’t see justice because of the views society has placed on women.

  9. After reading this, it reminded me of many other cases that I have seen on the news. As always, personally I think this is rape even though the girl she was flirting with guys, giving lap dances and making unwise actions which might cause others to get the wrong ideas. There is no doubt it is a rape because obviously the girl is drunk, she was defenceless against all the men were involved in this incident. As it states in the article some men knew what was going on and what the other guys were trying to do to the girl but they did not take any action to prevent the rape. Are they also responsible? I think they are as guilty as the guys who raped the girl. Of course, some may try to blame it on the girl and say that the girl should know her actions is the cause but I believe in this case is obvious that the girl is drunk and just for that is safe to say she was raped.

  10. Kelsey Jackson

    As long as the woman did not give consent, it is rape. Obviously, she was too drunk to give consent. Even though she was acting in a flirty way, she still did not deserve to be raped. These men that got away with raping her should have the “morals” to know better. How is gang raping a woman alright? It makes me sick that these men did not get convicted. Obviously, they weren’t too drunk to rape her… so they knew what they were doing. Is it okay to kill someone if they are drunk? Obviously not, so why is it okay for someone to rape another person because they are drunk? I think this is a “double standard” that these men got away with rape, as men probably believe she had it coming because of the way she was acting, but if a man was acting the way she did, it is totally acceptable, and, of course, it is kind of “hard” to rape a man.

  11. Danielle Cannon

    It’s interesting that you would suggest having an alcohol-limit for consent. I think we can combine the ideas of unsafe levels of intoxication for driving and an age-limit of consent to arrive at a reasonable case for a level of intoxication beyond which consent to sex can not be legally given and sex can be considered rape. If we can make men feel the same caution when thinking about a drunk woman as they do when thinking about someone who may be underage, maybe that’s progress.

  12. I know of a few people who said they was raped, it was in a similar situation. She was drunk, but not flirting and when the guy seen her again later that night she was passed out on the bed. This took place at a house party. Now when the guy told his side of the story he stated” yes she was drunk, but she also said I could do it”. The girl/vic stated that she thought the guy was asking her if he could give her a ride home.. Things that make you say hmmm… My point is, if you know this person is not in her right state then you need not to take advantage . Whatever the case is I feel it is a grey area in some saturations, in other yes it is rape. He knew she was drunk anything could have came out of her mouth. We all know that drinking can cause us to do things that may be out of the norm, we know if we drink too much things can happen. I think as a woman, we should never get that drunk to where we don’t know what’s going on around us. Women should know their limit, and if you feel like you have to drink that much then you should get help, because you can’t handle your drinking. It’s a little of a grey area for me again, because women know what they are doing before they put them self’s in a drinking situation. It make you ask yourself why would she do that ? Yet in still No means No and people need to grown up men and women.

  13. Melina Yousef

    If she’s drinking and passes out after whether if she was flirting or not if a man takes advantage of her then he is raping her. I am so sick of hearing that she asked for; if she didn’t want it to happen then she shouldn’t have been drinking, flirting and passing out. If she should have known better not to drink and pass out then men should know better that taking advantage of a girl who’s pass out is same thing as raping her.

  14. Rape is defined as sex without consent. So even if you are sooo out of your mind drunk are your are doing stupid things that arent helping your situation, to be honest you still are fully conscious of what you are doing and of course no means no. And even if you say yes that person is taking advantage of you in a drunken state where you are unaware or your surrounding as well as what you are saying and doing. So yes drunk sex is still actually considered rape, hence why im pretty sure its illegal.

  15. If she is drunk and knocked out, it is one hundred percent rape if she is touched. In an intoxicated state, people aren’t fully in control of themselves as well as their bodies. Even if a girl were to say yes to sex when she was intoxicated, it should be considered rape because it is not the right thing to do. Especially with strangers or people we don’t even know. Sex to me, is viewed as something special. I would not want to try to have sex with a girl who was drunk or under an influence anyways even if she “did consent”. I would be well aware that she is not in the right state of mind. Also, I have been raised to always show respect and protect others.

  16. Angela Hughes

    It is rape since she didn’t consent to it and she was very intoxicated to the point of unconsciousness. I think it’s horrible that people actually blame the victim for what happened. She didn’t ask for it. Sure she drank but in this day and age who doesn’t. It doesn’t matter, she could have been drunk, high, a part time stripper for all I care, that doesn’t make her responsible for their actions. How bad does the situation have to be for people to actually side with this girl and have the guys take responsibility for what they did. If the incident ended in her being killed after being raped, would that have been enough evidence for abuse. Even if she consented I still would expect punishment or something for what they did since consenting to something while very drunk is like passing a test and then thinking you no longer have to study anymore. Just because you got a passing grade doesn’t make you Einstein. I’m so tired of this idea that she asked for it. It makes no sense, guys like it when girls flirt with them and call them teases or stingy if they don’t, but the second she gets raped it’s like she’s a total slut. I suppose though she was being very innocent by not worrying about the possibility of what would happen to her if things got out of control. The only thing she’s guilty of is not seeing guys in a bad light and believing the world is a safe place. How could they punish her for thinking what we all want to believe in. In some ways it was foolish, but is that what we woman have to do in our everyday lives then? Walk around constantly thinking about the risks because guys just can’t control themselves, so it’s up to us to not put ourselves in that position.

  17. Samantha Morales

    I believe this is a case of rape! Im absolutely 100% positive that this girl was raped. Yes it was irresponsible of her to get so drunk around people who she cannot trust yet that does not give these boys permission to take advantage of her and have sex with her. Rape is having sex with someone without their consent or agreement. She was obviously not capable of making any type of decision at the time especially about having sex, and im sure if she was in the right state of mind she would have disagreed. If they made her bleed then that was not pleasing for her. It is disgusting to think that a bunch of immature boys think its “cool” to all have sex with one girl who is passed out drunk!

  18. Shu-Hsaun Hu

    Is this a rape? Yes, it is. But whose fault is it? It’s hard to tell. If there is a girl who shows up in front of a guy, dresses up sexy, get drunk and keep flirting. Isn’t that a sexual invitation? Since guys are easy to misunderstand the message. Then female should be more careful. I won’t say they guy do nothing wrong, instead of that, they should deserve the punishment. But women should be more careful in this society. They should aware that it is dangerous to get drunk in front of strangers, especially males. She should be conscious to think that if she wants to get drunk, then she should at least have some female friends around her that can take care of her. If she didn’t think of that, then she has some problems too. That’s how the society is: men rape women because they want to show they are dominant and powerful. Being a female, we should know how to protect ourselves. Or it’s too late to blame other people when we get hurt.

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