Why It’s Not Rape to Have Sex With Drunk Women or Those Who Say “No”; Minnesota Supreme Court Decision Highlights National Problem For Women
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It Is Not Rape For A Man To Have Sex With A Drunk Woman
WASHINGTON, D.C. (March 27, 2021) - The Minnesota Supreme Court just ruled, unanimously (6-to-0), that it does not constitute rape, or even third-degree criminal conduct, for a man to have sex with a woman who was so drunk that she had "blacked out," and was obviously incapable of giving consent or of saying "no," if she became drunk of her own free will.
In other words, the man would be guilty of having sex with a woman who is "mentally incapacitated" only if she is intoxicated on substances “administered to that person without the person’s agreement” - for example, like slipping a date rape drug into someone drink at a bar, says public interest law professor John Banzhaf, who has won over 100 legal actions protecting the rights of women.
This is not an isolated legal principle because Minnesota is reportedly among a majority of states that treat intoxication as a barrier to consent, thereby making the defendant guilty of rape, only if victims became drunk against their will.
Indeed, a recent law review article concludes that it's not rape in most states when the victim chose to consume drugs or alcohol and, as a result, became intoxicated or even unconscious.
Sex Without Consent
Just as it isn't rape in most states to have sex with a woman who is impaired or even unconscious from having voluntarily consumed too much alcohol, it also doesn't constitute rape to have sex with a women who has not given her consent, even if she clearly said "no" or "stop" or otherwise clearly indicated that she was not consenting.
As Banzhaf wrote in 2015, despite seemingly endless repetition of the "no means no" mantra by the media and by colleges and universities, a New York Times article on why sexual assault laws should change concluded that "this message often doesn’t line up with legal reality. A majority of states still erect a far higher barrier to prosecution and conviction by relying on the concept of force in defining rape . . . in more than half of the 50 states, a judge or jury must find that a person used force to find him or her guilty of rape."
So, despite all the discussion and debate about expelling college students under Title IX who have sex with another student who may be drunk, or where each and every step leading up to intercourse must have affirmative consent (the "yes means yes" standard), the sad fact is that the great majority of women who have sex without their consent, or even when they are impaired or even incapacitated from alcohol, are not protected by the rape laws in the majority of states; although, if both are students at the same university, there is broad protection under Title IX, even under the current regulations.
While many advocates are pressing the Biden administration to change the regulations governing campus prosecutions under Title IX for date rape and other sexual wrongdoings to make it easier to expel the accused, no one seems to have explained why there shouldn't be more emphasis and concern for the much larger number of women who are not students, and therefore too often are not protected by state rape laws, says Banzhaf.
