What does consent look like when you’re wasted?

By Fusion Staff | June 28, 2016 | 1:15am

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Any drinker knows what it’s like to wake up after a night of boozing and think, “I hope I didn’t do anything stupid.” Chances are, at some point you have. But what happens when your actions under the influence aren’t just embarrassing, but actively cause someone harm?

Earlier this month, Brock Turner, a former Stanford student who sexually assaulted an unconscious woman behind a dumpster, propelled this question into the national spotlight when he blamed his crime on a college culture that encourages binge drinking and “sexual promiscuity.” His defense—a clear attempt to eschew blame for his own horrific actions—was largely met with eye rolls and anger from a public disgusted by his lenient prison sentence.

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Yet while Turner’s words were intended to shift responsibility off himself, his defense raised an important point: A culture that celebrates drunk hookups but rarely discusses how to navigate consent under the influence seems primed for catastrophe—and that’s something we need to talk about.

In the world envisioned by many college administrators and consent educators, we’d all be 100% sober every time we had sex, offering our partners clear, verbal consent for everything we happened to get up to. But we don’t live in that world. And while few of us end up taking advantage of a passed-out partner (or being taken advantage of in a passed-out state), most of us have, at some point or another, wound up in a situation where alcohol led to fuzzy boundaries and imperfect consent. What does it mean when a partner’s far drunker than they actually appear—or when we we give the impression of consenting to something we later regret (or perhaps don’t even recall)? And what can we do in the aftermath of an experience that might not have been as consensual as we thought?

The year I turned 23, a boy I’d long had a crush on came to my birthday party. I was pretty sure he wasn’t into me, and felt somewhat surprised when, later in the evening, he asked if he could kiss me, asked if he could sleep in my bed with me, asked if he could take my clothes off, asked if he could take off his own. So much of the evening happened at his direction, with what appeared to be enthusiastic, explicit consent.

A few days later, he told me over email that he’d been blackout drunk the whole time and felt that I’d taken advantage of his inebriated state.

My experience is an obvious outlier—few people in such an intensely inebriated state are able to give the impression of relative sobriety—but as I began talking to people about sex under the influence, it became clear that, for many, the combination can lead to some deeply confusing, and often uncomfortable, experiences.

When I put out a call for stories of experiences in the “grey area” of consent, everyone I knew seemed to have one. My friend Lauren told me about drinking until she puked—and then having sex with a boy she’d long had a crush on, undeterred by the vomit caking her hair until she woke up the next morning and realized the evening wasn’t quite the way she’d wanted to consummate their relationship.

Steve, who requested that I change his name to protect his privacy, told me about a time when alcohol lowered his resistance to a girl he wasn’t particularly interested in. Even worse, he later worried he’d taken advantage of her when he realized that what he’d thought was a continuation of sex momentarily interrupted by him passing out was actually him initiating sex with a sleeping girl hours after their original act of coitus.

Matt, who also requested I change his name, relayed a tale almost identical to my own: an afternoon of drinking with a flirty girl who seemed to enthusiastically consent, over and over, to every bit of their encounter, only to reveal the next day that she didn’t remember anything that had happened.

Whether an inebriated sexual experience feels exciting or awful can often come down to a matter of luck. Anna (another name change) shared two experiences that occurred within the same month, both of which involved blacking out and waking up in bed with someone. The first felt like a fun hookup; the latter, sexual assault. Part of the difference lays in the scraps of memory she retains from each experience—the consensual-feeling moments she recalls from the first experience, the physical pain she was left with after the second.

But most of what separated the experiences was far more vague: “It’s the difference between being in my own apartment and being in an insane spring break resort in Cancun where the towels are folded to look like monkeys; the difference between having been surrounded by friends most of the night and surrounded by frat boy strangers; the difference between waking up next to someone I didn’t know well but who was part of a trusted circle of friends, and someone I still don’t know at all but who had … angel wing tattoos.”

Part of what makes these situations so difficult is that many of us have mixed alcohol and sex to no ill effect. Have a drink or two, and it’s just a little social lubrication that helps to tamp down anxiety and lower inhibitions; for many, it can take a significant amount of drinking to edge into actual risky territory. So how do you know when you’re at risk for crossing a line?

Jaclyn Friedman, co-editor of the anthology Yes Means Yes!: Visions of Female Sexual Power and A World Without Rape, objects to the idea that even a single drink should mean that sex is completely off the table. “I think a lot of concerned adults overshoot the mark and say you should never, ever, ever mix alcohol and sex. But honestly, it’s completely unrealistic and also not true. I’ve had drunk sex and had a lot of fun. But I know where my line is.”

But knowing where someone else’s line is can be more difficult—especially when it’s someone you’ve only just met. Alcohol affects everyone differently: your age, your sex, how often you drink, even what you had to eat that day can all play a part in determining how quickly your judgment gets impaired. Knowing when someone’s had too much to drink isn’t always as simple as monitoring how many beers they’ve had and doing some quick math.

Friedman suggests erring on the side of caution. “If you have any question as to whether your partner is [too impaired] to consent, then the answer should be no.” A reasonable rule of thumb to operate by? If someone’s too drunk to drive, they’re too drunk to consent to sex.

The drunk driving analogy also makes the risks of drunk sex more clear. “It’s possible, if you’re drunk, to get behind the wheel and drive home and not hurt anybody,” she says. “We agree that that’s a possible thing. But we also agree that it’s a horrible asshole thing to do.” It’s also, she notes, illegal: “We don’t say there’s a grey area there just because nobody got hurt in that instance.”

Drunk driving isn’t only illegal when it leads to death and destruction; similarly, drunk sex shouldn’t merely be considered damaging and dangerous only when it it involves a woman passed out behind a dumpster.

Yet as much as we can intellectually understand the similarities between drunk sex and drunk driving, the comparison doesn’t always click on an emotional level. For many of us, the risk-reward analysis of drunk sex seems to work out in drunk sex’s favor—and it’s only after that fact that we begin to realize what seemed like a tipsy, fun hook up was actually an intoxicated, uncomfortable experience. So how can you remedy a seemingly consensual situation that’s gone awry?

I remember feeling a hard knot form in my throat as I read the email accusing me of sexual assault at 23. While some might have felt compelled to turn the tables on an accuser, to shame him for drinking, to remind him he’d started things, to shift the blame off of myself and on to him—I didn’t do that. I’d been on the other side of this equation before, and I knew what it was like to feel betrayed and violated by someone you thought you could trust. I knew how unhelpful defensiveness and excuses were to someone who just felt vulnerable and hurt.

So I tried to give my friend what I would have wanted in his situation. I laid out, in as neutral terms as possible, how the evening had appeared from my perspective. And then I did my best to apologize:

I don’t know you, and I don’t know what you’re like when you’re drunk, and maybe I shouldn’t have believed any of [what you said that night], and I apologize…. I apologize, because I don’t know your conditioning, and I don’t know what you’re like, and I had no idea that I was hurting you.

I feel really horrendous about this, and I just hope that you’re okay. It was never my intention to hurt or take advantage of you, and I just hope that you can understand that one day.

Ultimately, I did receive forgiveness—but for me, that wasn’t really the point. As uncomfortable as it was to be accused of sexual assault, I knew firsthand that being violated felt worse. And what mattered more to me—what continues to matter more to me—was knowing that this man would be able to begin to heal.

And that’s something that’s often overlooked when we talk about sexual experiences that leave someone feeling violated. We get so hung up on the details of the violator—trying to explain away their actions, making sense of a horrific act—that we often forget about the needs of the violated. “We need to remember that rape means somebody is profoundly injured,” says Friedman. We’re so used to the idea of a rapist as someone irredeemably monstrous that when we’re accused, our impulse is to distance ourselves from that image, to profess our own innocence rather than really engaging with our partner’s hurt.

“If somebody’s leg was broken because they tripped over you, you’re not going to first argue about whether or not your leg should have been there,” Friedman continues. “You’re going to help them, you’re going to respond to them as someone who’s in stress and crisis, who needs help and healing.”

So while an extra shot may not put you over the edge, it’s important to recognize that it may impair your partner in such a way that true consent is no longer possible. And if we do find ourselves in a situation where our partner feels sexually violated, rather than getting hung up on what our actions say about us, we need to start focusing on how our actions have harmed someone else—and what we can do to remedy and relieve that hurt.

Lux Alptraum is a writer, comedian, and consultant with one thing on her mind. Follow her on Twitter at @luxalptraum.