Coughlin Explores Sex Under Influence Issue

October 1, 2002
Prof. Coughlin
Prof. Anne Coughlin said in the "Old World" definitions of illegal sex help put the onus on the rape victim today.

Instituting a lesser offense in rape cases involving alcohol could help women and men regain sexual agency lost in the current rape laws, Prof. Anne Coughlin proposed to a packed Law School classroom Sept. 30. During her talk, "Sex Under the Influence," presented by the Rape Crisis Advocacy Project, Coughlin said she was considering the idea for her next article on the subject. Should women and men who have sex under the influence — where one or both has imbibed alcohol — be given the choice to come forward and attempt to convict the perpetrator of a lesser, misdemeanor charge if a rape conviction is not possible? What if both parties involved could be charged with the same misdemeanor?

When asked about "bad sex" cases in the past, "for years my reaction has been to sort of wring my hands," Coughlin said. "At what level do they need to be drunk to be incompetent? Where should we draw the line?"

During her presentation, Coughlin explained how the history of rape laws reveals why courts put the onus on victims, usually women, to prove their case. Contemporary rape laws require the victim to prove that the attacker used considerable force (such as threats of death or dismemberment) and that she did not consent to sex, traditionally shown by the victim's own physical resistance.

"To signal your nonconsent, it was definitely not enough to say 'no'," Coughlin said. The liberal critique of rape laws has helped redefine the nonconsent clause in some states, she added, but usually some amount of physical resistance by the victim is required for sex to be proven rape.

Coughlin compared how laws define the requirement of nonconsent in rape and robbery cases: when you are robbed at gunpoint, the law doesn't require you to physically resist for a robbery to have taken place.

"Why should you place such a heavy burden on the woman?" Coughlin asked. "Why, if the point is to protect sexual agency, have a heightened force requirement?"

Coughlin found her answer in her own research. In contemporary laws, the line between legal sex and illegal sex is consent. In what Coughlin defined as "Old World" laws, the line is marriage. In addition to rape, adultery and fornication were illegal in the past, and many states still have laws against them, though they are rarely prosecuted.

"Consent served a very different function in the old world. Consent determined one kind of crime from the other," she said. The Puritan docket, for example, was full of consensual sex crimes. Nonconsent and force were factors judges used to determine if the illegal sex was rape as opposed to adultery or fornication.

"For women, we're continuing to apply the double standard with a real vengeance," Coughlin argued. "Women have to prove that they're not guilty of one of those crimes [adultery or fornication]." She said states should eliminate the physical resistance requirement.

While her scholarship helped her understand the doctrine behind rape laws, Coughlin said she was interested in taking her ideas further, asking students in the room for their thoughts on cases with gray areas, such as those involving alcohol.

"It's not reasonable for a perpetrator to believe that a very drunk person is giving meaningful consent," she said. She called it bad behavior that wouldn't stand as a rape charge, but might qualify as a misdemeanor if such a law was instituted.

In Coughlin's model, both parties involved could be charged with a misdemeanor if one came forward. She guessed that a victim wouldn't come forward unless he or she felt really wronged, letting a judge decide if the case was misdemeanor or felony rape. By giving such cases a hearing, the plaintiff would regain some sexual agency by making a choice to pursue a conviction. Rape cases involving alcohol are rarely prosecuted now, even if the victim desires it, because of the high threshold of proof required and the perceived loss of judgment when alcohol is involved.

But even with a misdemeanor option, a jury may assume a man would want to have sex, drunk or not, and a woman wouldn't. "My worry [about the proposed misdemeanor charge] is that those kinds of assumptions are damaging to women" and enforce the Old World views, she said.

Few "bad sex" cases would come forward if both parties could be charged with a misdemeanor, Coughlin said, but the law might help shift public opinion about gray areas of rape. She pointed to the impact the Mothers Against Drunk Driving campaign for DUI laws made on the conviction rates of drunk driving offenders, and the subsequent drop in alcohol-related driving incidents. "All those mores have changed," she said. "Do we want to change these mores?"

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