Alcohol and Rape Prosecutions: Consent, Intoxication, and Memory

April 29, 2022 Kristance Harlow
woman with half face as mirror of man

Victim blaming is a defense mechanism for bystanders to feel safe by falsely imagining that it “could be avoided if…” or “that can’t be the real story.”

Content Warning: discussions of sexual assault

In allegations of sexual assault, if there are no physical injuries and a lack of DNA evidence, the court of public opinion tends to be skeptical, citing a lack of hard evidence for their disbelief, despite the fact that eye witness testimony is evidence. Eighty-six percent of “sexual assaults are never prosecuted on the grounds that the victim’s testimony does not seem to be reliable.” If the victim was under the influence of drugs or alcohol during the assault, they are even less likely to be believed.

At least half of all rapes in the United States involve alcohol consumption by either the victim or the perpetrator. In acquaintance rapes, alcohol is part of the equation 75 percent of the time. Women who drink are viewed as more sexually forward and untrustworthy. If they got drunk on their own accord, they can be considered unreliable and their testimony dismissed.

Memories are not always reliable, and drunken memories garner even less trust from the outside observer. Memories are malleable and can be corrupted. For example, identifying facial features of an assailant who is unknown to the victim can be a difficult task. There are likely parts to the memory that are accurate. While people who experience trauma can struggle to recall the central events of the traumatic experience, seemingly inconsequential details may be burned into memory. A lack of confidence can make jurors distrust the victim’s story.

As Kate Harding explains in her book, Asking for It, “if women who were raped while drunk can never be regarded as credible witnesses, then it actually is ‘allowable to take advantage of a drunken woman.’” Community conversations about alleged victims who were drunk always involve people arguing that being drunk makes the claims sound false. It is such a popular assumption that some law firms advise defendants to prove that their victim was not sober because “people who are intoxicated tend to be less credible.”

The stereotypes about drunk sexual assault victims are extremely negative. (Anyone of any gender can be a victim of sexual assault, despite the default feminine-identifying survivor I’m using here). Her character, her past, her appearance, even her grades in school are put on blast because we think we can discern some valuable insight from these details. We will uncover some damning evidence that she was the kind of girl who lies, cheats, and is kind of skanky; a girl of questionable character. With the perpetrator, we dig for proof that he is the opposite. A great student, a kind person, he is in a committed relationship with a beautiful girl so we ask why he would rape someone like the alleged victim. This person can’t possibly be guilty because they aren’t a monster to their mother and care about their sister.

Rapists are not rabid dogs. They do not stick out like fairytale monsters. They might be strangers, neighbors, friends, family, coworkers, peers, or romantic partners. They might be loners, social butterflies, activists, cruel, kind, hard workers, lazy, addicted, or sober. Assault is not defined by the characteristics of the perpetrator or victim. It doesn’t matter what kind of relationship the survivor and the attacker have, if it is not consensual, it is not okay. When under the influence, consent cannot be given. Legally, it is considered criminal sexual conduct in the third degree.

This is the narrative of a survivor: A female college student gets dressed up in a tight dress and heels and goes to the bars with a couple of friends. She’s drinking a lot and next thing she knows she wakes up naked in a stranger’s bed. She has no idea what happened besides what the guy next to her in bed can tell her. She gathers her things and does the ‘walk of shame’ back to her apartment with heels in hand.

This is the narrative of an alleged perpetrator: A guy at a bar sees a woman he finds attractive. She is drinking a long island iced tea and he flirts with her and buys her a couple shots. He is nursing a beer most of the night. They kiss in the bar and he walks back to her apartment with her. She is so drunk that he has to hold her up. At her building, she can’t remember her apartment number and spends ten minutes pounding on the door of the wrong apartment when her key won’t fit in the lock. Since she can’t remember where she lives and is not in any state to be left alone, he takes her back to his place and has sex with her. When she wakes up, he tells her what happened.

Was she raped? Would you believe her if she said she was?

I was that young woman doing the walk of shame with my heels in my hand. That situation is not hypothetical, it is what happened to me when I was a senior in college. He knew I was dangerously drunk, and described to me my outrageously messy behavior. He said I couldn’t walk straight or use my phone correctly, but still he had sex with me. I absolutely could not consent and he basically told me as much.

It wasn’t until recently that I accepted the reality that I was raped. At the time, I was ashamed and embarrassed. I tried to recount it as a funny drunken tale, but it never settled right with me. I always felt that what happened wasn’t normal. This is a common story for many rape victims. I know many people would look at my side of the story and say I shouldn’t have worn what I wore, I shouldn’t have gotten drunk…shoulda, coulda, woulda criticisms that don’t change what already occurred.

Even if their testimony is believed, that doesn’t guarantee their experience will be validated. Confidence in an eyewitness is not an indication of accuracy, just as shaky sounding and unsure testimony is not an indication of inaccuracy. Alcohol affects the conversion of short-term memories to long term. Information can go missing but the memories that do get encoded are not any more likely to be false than sober memories.

In a painful quirk of psychology, focusing entirely on the victim’s story can increase the likelihood for victim blaming. When the rape is recounted solely from her perspective, there is a critical lack of focus on the assailant’s choices. In her story, we tend to see too many opportunities for imagined correction. Presenting the positive character qualities of the perpetrator and then the narrative of the victim is problematic. It presents the victim as the actor and the perpetrator as passive, essentially taking away the agency of the perpetrator.

It is tragic when someone is falsely convicted of a crime and punished for something they did not do; thankfully that is rare. Why is it so challenging for the general population to accept that the vast majority of the time, allegations of sexual assault are true?

The just-world hypothesis is a psychological phenomenon wherein people believe life is fair and we get what we deserve. It can manifest as believing the victim’s story but criticizing the choices of the victim and pointing out where they should’ve done something differently. Or this phenomenon can present itself by not believing the victim’s account. In this way, victim blaming is a defense mechanism for bystanders to feel safe by falsely imagining that it “could be avoided if…” or “that can’t be the real story.”

Alcohol consumption affects the capacity to communicate clearly, self-awareness is altered and emotional intelligence is dampened. People become more aggressive when intoxicated and cognitive functioning is impacted. Being drunk can make it harder to determine if someone is able to consent or not, which is a great scapegoat in a culture that doesn’t want to believe that the good-guy-next-door could commit such a heinous act.

There are many reasons rape survivors don’t go to the police, not least of which is knowing how few rapists go to jail and how intensely invasive the judicial system can be. It doesn’t matter what social relationship exists between victim and perpetrator and it doesn’t matter what choices the victim made before or after the assault; if it is not consensual, it is rape.

Originally published on The Fix.

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