I had occasion to
dine drink with one of my tens of loyal readers one recent evening. As usual, our conversation drifted to various seemingly-random-but-actually-connected subjects, including at one point the fascinating post-Civil War life and career of General Robert E. Lee.
As our evening was winding down, he pulled me aside and in his low, conspiratorial whisper of which I am rather fond, he told me that he “did not entirely agree” with the hypothesis presented in my recent post regarding the acquittal on rape and sexual assault charges of two NYPD officers. In that piece I had been musing on the question someone asked regarding what proof is required for a woman to obtain a rape conviction, and I posited that:
the proof that a woman has to have is just that: proof. Of course in all other crimes, what is required for a conviction is evidence, not “proof.” In any other case, if all of the evidence considered by the jury leads to the conclusion, beyond a reasonable doubt, that the accused committed the crime, then that person is said to be proven guilty. In rape trials, however, the standard is quite different: a conviction requires airtight, rock solid, mathematical proof. All doubts are reasonable doubts.
I mentioned several of the critical components required for this unique standard of proof:
- First, the victim must have sustained brutal, medically documented injuries that would be inconsistent with anything other than a violent sexual assault.
- Second, the crime must yield indisputable DNA evidence linking this particular sexual assault directly to the accused.
- Third, there must be incontrovertible evidence that the victim was not out drinking.
(I also mentioned a few of the usual Sharia-law requirements, not relevant here.) But on this last subject of intoxication, I said:
In a sane world, a woman’s obvious intoxication would render her less culpable for her own rape, due to her inability to meaningfully consent. In 21st century New York City, however, a woman’s obvious intoxication is an opportunity; she is perceived as more culpable for any sex act that follows. If she is in any way culpable, there was no rape. Q.E.D.
My implication that drunken consent is not meaningful and valid consent is what my loyal reader found troubling.
His thesis as I understand it is this:
1. Consent given while one is completely smashed is still meaningful and valid consent.
2. If one regrets having given such consent after the fact, that’s just too bad: “then you deserved it.”
3. Herein lies a fundamental difference between men and women: men naturally accept this view, women do not.
First, allow me to quickly dispose of item three: bullshit. There are plenty of men who would emphatically disagree with the contention that drunken-consent-is-valid-consent-and-if-you-regret-it-too-bad-you-deserved-it. There are also plenty of women who would wholeheartedly agree with that contention: around the Palace we refer to them as “social conservatives,” but only when we’re being nice. In fact, social conservatives often go even further: you also deserve to “live with the consequences” of your drunken sluttitude by bearing your rapist’s baby.
I asked him whether a young child would be able to meaningfully consent to sex with an older adult?
“No. Of course not.”
What about an adult who is severely autistic, or suffers from some other serious mental impairment? Can such a person meaningfully consent?
“No, I don’t think so.”
But a vomit-soaked, semi-conscious, clearly inebriated woman who requires police assistance in order to extricate herself from a taxi?
The underlying claim being made here by my loyal reader here is this: if after drinking excessively one acts irresponsibly, one is still ultimately responsible for one’s excessive drinking in the first place, and therefore bears full responsibility for any regrettable (or even criminal) acts in which follow.
My loyal reader related that he had personally been in the drunken slut scenario: he consented to sex while very intoxicated, and felt absolutely certain that his consent was meaningful and valid, and that whether he later regretted it or not was irrelevant. “Too bad. I deserved it.”
I will admit that his argument has some appeal.
I did not tell him then and there, but I myself have also played the starring role in the drunken slut scenario. I was sixteen years old. I went to a wildly popular college bar with my over-21 roommate; I had a fake I.D. but it was not checked. At the bar we met the owner and a manager at the establishment. They apparently took a liking to us and bought us drinks. A lot of drinks. I don’t remember much of anything past doing shots at the bar, until waking up nearly naked on the floor of what turned out to be the owner’s office, with said proprietor on top of me attempting to penetrate me vaginally with his dick. I tried to push him off, and partly succeeded. He kept kissing and groping me. I think I told him I felt really sick; anyway he finally backed off. I got up, got dressed, got out of the locked office, and made my way out of the building. The club was long closed, dark and completely empty. Somehow, I drove my car home. When I arrived my roommate was there, waiting and worried: when she could not find me at the club, she assumed I had left her there, so she had walked the several miles to our apartment in the middle of the night.
I didn’t think he had penetrated me, but I didn’t really know. I went to an off-campus clinic and got screened for STDs, and I also took a pregnancy test: all clear. Had I flirted with him? I didn’t remember. Did I strip for him, or beg him to fuck me? I seriously doubt it, but the truth is I have absolutely no idea. Regardless, what happened that night could have easily cost this guy a lucrative liquor license — and then some. But I didn’t report it. To anyone.
Because I felt responsible. That I allowed whatever happened to happen, and therefore I deserved it.
It wasn’t until years later that I processed these events in more depth. For one thing, I concluded that it was extremely unlikely that I was the very first young woman to find herself waking up on that office floor with this man on top of her (although I suppose it’s possible I was the first sixteen-year-old). It was also very unlikely that I was the last. Had I reported it, there would almost certainly have been no conviction or even prosecution (beyond the liquor law violations) — after all, I could not meet any of those very special standards of proof required for a sexual assault conviction. But I also realized that, had I reported it, there likely would have been far fewer women waking up on that office floor.
So now, in addition to feeling responsible (and stupid), I also feel guilt and shame that I wasn’t brave enough to do anything to put a stop to it. Here’s the thing: put aside for a moment wherever it is that you gauge my level of culpability. Wasn’t what this guy did also wrong? I did not go out that night seeking sex, only drinks and dancing and laughs with my roommate. I was not attracted to this man, I knew next to nothing about him, and I absolutely would not have consented to sex with him under any other circumstances (that is, assuming I “consented” at all that night or otherwise gave him any reason to think that he had a green light; I really do not believe that I did, but as I said, I honestly do not know).
I realize very few people are in the habit of making sober, analytical decisions well in advance about exactly who they will fuck and under exactly what circumstances; the very premise is absurd, as it runs entirely counter to the nature of human sexuality. (This is why I object to “abstinence only” sex education: it ignores the very nature of sex, as the corresponding teenage pregnancy rates, STD epidemiology, and abject failure in preventing premarital sex all amply demonstrate.) But speaking for myself, the best sex happens only in a relationship between people who genuinely care about and trust each other: the more this is so, the better the sex. Putting aside early awkward attempts with high school boyfriends, I already knew the sex/trust equation to be true for me at sixteen. I do not trust easily. What we are talking about here is a middle aged bar owner who gives dozens of free shots to young college women, then takes them to his locked office. Yet somehow I doubt that he felt the least bit responsible, or stupid, or guilty, or ashamed — of anything. But shouldn’t he?
So yes, I understand the it-was-my-fault-I-deserved-it impulse, but it is just that: an impulse. A reaction. That doesn’t make it a logical or correct interpretation of events. And even if you think I deserve some of the blame, this only leads to another question: what exactly does he deserve? An atta-boy? High-fives, all around? This was a man I would not want to have sex with.
But I want to take a step back, away from our personal histories, closer to the case in question.
Let’s look at a similar fact pattern, but in the context of a property crime (which incidentally is what rape has been considered historically, and still is in many parts of the world*). Let’s say that my loyal reader is out at a bar one night discussing the post-Civil War life of famous Confederate generals with some crazy broad from the neighborhood, and he has had a few too many (which would never, ever happen. Perish the thought!). He says “g’night,” and staggers out the door in his fabulous blue hoodie. He stumbles onto bustling Hudson Street, whereupon someone sees him fall to the sidewalk and giggle uncontrollably as he struggles, so far unsuccessfully, to stand back up.
It is a police officer from the 6th precinct, on duty, and in uniform. “Are you all right, sir?” she asks him. “Here, let me help you up,” and she helps to right him.
“Oh, thank you so much,” he says. “I’m so sorry. I’m fine.” A few moments later he is on his way, a little wobbly, but the shock of adrenaline from the fall helps to keep him fairly vertical. He gets to the door of his apartment building, and discovers that his keys are missing. He lives on the first floor, so he tries a window: locked. He decides to look for them back at the bar, and traces his path back the way he came. Well, more or less.
Sadly, my loyal reader soon returns home keyless; he has to wake up the building Super to let him in. He quickly falls asleep.
The next day he awakens fuzzy-headed and nauseous, with only a few spotty memories of the previous evening. He remembers that he lost his keys, and that he took a trip back to the bar to look for them, to no avail. He realizes he will need to sheepishly contact the Super to apologize again, and inquire about obtaining another set. He notices his knee is scraped and a bit tender.
Now he notices something else: the shelves where he keeps his photography equipment have all been rifled. Oh no. No, no, no. Gone is a brand new, high-end digital camera, a few other small, expensive electronics, and a rare old watch his father had given him. He remembers the officer helping him up when he fell on the sidewalk. Did she walk him all the way home? Not sure. Can’t remember.
He reports the robbery to a detective at the 6th precinct, and relates the events of the previous evening as well as he can remember them. He mentions the fall on Hudson Street, and the helpful officer. The detective thinks he might know who it is: Officer Romeno. Sure enough, she filed a report at the end of her shift, and she made a brief note about a guy who fell on the sidewalk. The detective calls Officer Romeno, to see if she might recall any other details.
“When I helped him up from the sidewalk he was upset, but seemed otherwise fine. He told me he was on his way to a friend’s place where he would spend the night. He said he was very afraid: an angry ex had just threatened to rob him (or worse), and he pleaded with me to retrieve his valuables and hold them for him. I know I shouldn’t have, but… I felt sorry for the guy and I said okay. He gave me his address and his keys. But when I got to the apartment, his stuff was already gone — either that, or, you know, maybe there was no expensive equipment there in the first place. I have his keys — he told me he’d pick them up at the station tonight.”
Officer Romeno will later testify to all of this in court.
My loyal reader completely denies every word of it, but he admits his memory of the night before is full of holes. He doesn’t remember any angry ex threatening him; he didn’t recall planning to spend the night at a friend’s place, either. Could he have actually said all those things to the police officer, and given her his keys?
He thinks it far more likely that when Officer Romeno helped him up from the sidewalk, she slipped his keys out of the pocket of his fabulous blue hoodie, followed him home, and when he went looking for his keys, she robbed the place.
Meanwhile, the detective acquires a copy of the tape from a security camera across the street, and watches the footage. Officer Romeno is clearly visible entering the building at 1:15am, and then exiting seven minutes later. He checks the detailed logs for the night shift. At 1:12am, Officer Romeno responded to a radio call from dispatch: a 911 caller had just claimed that there was a loud disturbance on the very same block. She radioed back to dispatch at 1:24am that she had investigated, but it turned out to be nothing.
It is eventually discovered that that Officer Romeno herself made that 911 call.
My loyal reader calls Officer Romeno at the station that evening to arrange to pick up his keys. He records the conversation. He probes her about the evening, and specifically about the equipment and the watch. For a while she maintains her story, but eventually she admits that she had her boyfriend pawn all of his electronics and his watch. She says she will leave his keys with the desk sergeant; he picks them up later without incident.
The case is referred to the DA, who brings a slew of felony charges against Officer Romeno including burglary, breaking and entering, grand theft, and first-degree false reporting of an incident. At trial she unwaveringly sticks to her story: “He asked me to take his stuff,” she says, “but when I got there, there was nothing to take.” There is damning testimony about her making the false 911 call. The recording is played, the one where she admits to pawning the stolen property.
The jury acquits on all of the serious charges. “There was no proof!” the jurors tell the New York Times.
I’m just kidding. Of course that’s not how it ends! What happens is this: my loyal reader refuses to cooperate with the prosecution. He knows that he was really drunk, so whatever happened he allowed it. It’s too bad, really, but he deserved to be robbed. The DA has no choice but to drop all the charges.
*Rape is not a property crime against a woman, silly! It is a crime against the property of her rightful owner: her husband if she is married, her father if she is not. This is codified in the Bible: see e.g. Deuteronomy 22:28-29. For instance, God’s Word dictates that when our hero, the godly man, rapes a virgin, he must pay a fine of fifty shekels of silver to the victim’s father. Also, the rapist must marry the victim. Poor guy. It’s so unfair. We all know she was probably out drinking.