This week, as another case of socially powerful teenage boys allegedly committing rape and seemingly getting away with it--this time in Maryville, Missouri --captivated national attention, the conversation predictably focused on the victim's drinking. "I’m not saying she deserved to be raped," said a defense attorney on Fox News of one of the victims, 14-year-old Daisy Coleman, adding, "She is leaving her home at 1 a.m. in the morning and nobody forced her to drink." Slate's Emily Yoffe claimed that "a misplaced fear of blaming the victim has made it somehow unacceptable to warn inexperienced young women that when they get wasted, they are putting themselves in potential peril." USA Today referred to Coleman dismissively as a "drunken 14-year-old cheerleader."
Whether the alleged victims were "wasted" or "drunken" does matter, but not for the reasons those commentators suggested. It matters legally, because in most states, incapacitated people are unable to consent to sex, whether because they've drunk alcohol (even, in many states, if they've done so knowingly and voluntarily), taken prescription or illegal drugs, or are developmentally disabled.
And though it won't apply retroactively to Coleman's case as a special prosecutor looks into whether charges should be refiled, Missouri law recently became even clearer on that point.
The Kansas City Star reported that Coleman’s blood alcohol content was .13 seven hours after the alleged rape. (The legal limit for driving under the influence is .08 in all 50 states). Coleman said she blacked out, and her friend told the Kansas City Star that Coleman was “unable to speak coherently and had to be carried from the bedroom” that night.
Despite years of rape law reform, many people still imagine rape as a crime involving literal force, rather than lack of legal consent.
The fact that incapacitated people can't legally consent to sex remains poorly understood, even after two teenage football players were found delinquent of raping an incapacitated girl in Steubenville, Ohio. The confusion is so widespread, says Scott Berkowitz, president and founder of the Rape, Abuse, and Incest National Network (RAINN), that one of the most frequent questions RAINN gets is, "Is 'date rape' illegal?" Teens in particular, he told MSNBC, wonder about whether the use of alcohol or the fact of the perpetrator being known to the victim makes it rape. "Because that question is so common, we stopped using that term," Berkowitz said.
That confusion affects both potential victims and potential perpetrators, who may not understand the depth of legal trouble their actions may invite. It also provides cover to predators who have been known to use a victim's voluntary drinking as cover for their assault.
It's also why feminist activists have tried to redirect the anti-rape conversations from "no means no" to affirmative consent and clear understanding that a partner is enthusiastically participating.
A handbook for attorneys on prosecuting alcohol-facilitated sexual assault created by the National District Attorneys Association acknowledges that jurors "tend to assume that the woman consented because she was intoxicated and simply regretted the sexual encounter later. In these cases, the defense tends to argue: 'It’s not rape; it’s regret,' or, 'It’s buyer’s remorse.'” Indeed, the attorney for Matthew Barnett, who is accused of raping Coleman who left her unconscious in front of her house in subzero weather, claimed to the press that "subsequent investigation and interviews raised substantial doubt about the felony charge, specifically including whether the young lady was incapacitated during the encounter." Barnett claimed to the police that the sexual encounter was consensual.
That was the version that Nodaway County, Mo., prosecutor Robert Rice seemed to be endorsing when he told the Kansas City Star of the teens, "They were doing what they wanted to do, and there weren’t any consequences. And it’s reprehensible. But is it criminal? No.” (After a Kansas City Star investigation and subsequent public outrage at the case, Rice evidently changed his mind, requesting that a special prosecutor reopen the case.)
Because inability to consent is not a bright line the way impaired driving is, it often requires making a case to jurors based on several elements of evidence. At the same time, as the NDAA handbook noted: "Prosecutors must overcome the tendency to focus on and blame the victim and re-direct the focus back to the offender’s actions, and thus on the elements of the crime."
State laws vary on whether it matters if the alleged perpetrator was aware that the victim was incapacitated, but “a lot of states are silent on that exact point,” Berkowitz said.
As for the Fox News guest’s assertion that “nobody forced [Coleman] to drink," Berkowitz said, “typically, that doesn't matter. I would say that 30 years ago, under most state laws, that would have been exculpatory. The fact that alcohol is consumed voluntarily would have made it not rape in many places. These days the norm is, it doesn't matter whether they chose to drink or whether someone spiked their drink, it's whether they're capable of consenting.”
That’s the shift that Missouri’s state laws underwent, effective this August. (The law doesn’t apply retroactively, so it doesn’t affect Coleman’s case.)
Colleen Coble, the CEO of the Missouri Coalition Against Domestic and Sexual Violence, said that advocates had helped update a 30-year-old criminal code. “We went from a law that was constructed primarily on the bad guy's use of force or drugging of you to one that is very clear that it is rape if the victim is incapable of consent, in addition to elements of force,” she said. The hearings for the proposed new law happened weeks after Missouri’s own Todd Akin made famous the phrase “legitimate rape.” Coble says of Akin, “It was certainly was an unexpected opportunity to make dramatic advances in terms of people's understanding.”
The old law included a provision, since deleted, that “no crime is committed if the actor reasonably believed that the victim was not incapacitated and reasonably believed that the victim consented to the act.” If new charges are filed in the Coleman case, Barnett’s attorney would theoretically be able to claim that Barnett believed Coleman consented, though the jury would have to buy that you could reasonably believe a crying and incoherent person is consenting.
Going forward, Missouri’s laws are as clear as they come. But the roadblock is less often the law and more often the culture. “While there are still laws that could be tweaked, for the most part the behavior that we want to make illegal is already illegal,” said Berkowitz. “The bigger challenge is first encouraging more people to report their crime--only about 4 of 10 report--and then making sure that police and prosecutors take the cases seriously, that they investigate them properly, and that they pursue them aggressively.”