Drunken Sex: Then and Now

Frances Howard-Snyder

When I was in college a long time ago, I sometimes got drunk. Really, really drunk, drunk enough to put out a cigarette on my leg and not feel it. Drunk enough to fall out of a car with two gallon jugs of wine in my arms and not feel it (even though the jugs broke, as you’d expect). And sometimes when I got drunk, I had sex, with my boyfriend, my massively imperfect boyfriend. But also, once or twice, I am ashamed to confess, with other men. Were they as drunk as me? Were they drunker than me? Quite possibly. 

How did I feel about these encounters? I don’t recall well. Those two years were a bit of a blur. I expect I felt a bit brazen about them, but also perhaps a little sheepish. Promiscuity was then, as now, rather dangerous. I was on the pill, but I could have caught an STD, and AIDS was just starting to be a concern. So, I expect, when I realized what I had done in the sober light of morning, I must have slapped myself on the head and said, “What an idiot! Do not do that again!” and then moved on. 

Fast forward thirty years. My kids are in college They have been raised well – I hope. We have encouraged them to avoid alcohol and other drugs and to regard sex as a serious matter, not to be engaged in lightly, their sex partners are never to be forced or coerced or in any other way treated with disrespect. And from what I have seen of their relationships, they follow these rules. I would never expect them to mistreat a partner. Could it happen that one of them became blind drunk and fell into bed with a similarly blind drunk but enthusiastic partner? Could they wake up with the same “what an idiot!” reaction as I did? They are good people, but surely this is possible. Late adolescents don’t always follow their parents’ advice; nineteen-year-olds don’t always do what they know is right and sensible. 

Consider the following case described in “How Drunk is too Drunk to have sex?” Amanda Hess in Slate, 2014.

“According to documents filed in Los Angeles Superior Court last year--which include text message records, witness statements, a police report, and Occidental disciplinary notes—on Sept. 7, 2013,” two students, John and Jane, became inebriated and had sex… 

“But, a week after the incident, Jane filed a complaint against John with the school. John was ultimately found in violation of Occidental’s sexual misconduct policy, which forbids students from having sexual contact with anyone who is “incapacitated” by drugs or alcohol. John was expelled, the harshest possible punishment for students found responsible for sexual assault on campus.”

According to the Occidental code of conduct, John had committed an offense, even if he was as drunk as Jane. In such a case, he could have filed a case against her and both would have been victims and perpetrators of rape. (For other discussions of this case, see Caitlyn Flanagan, “Mutually Nonconsensual Sex,” published in The Atlantic, on June 1, 2018 and also my story, “Human Contact,” in After Dinner Conversations, August 2020.) 

Obviously. intoxication comes in degrees but let’s focus on cases where the person is too drunk to drive, too drunk to think clearly, but still capable of acting and of saying yes. According to many campus codes, intoxication to this degree makes a person too drunk to give adequate consent. Let’s also focus on cases where neither party “makes” the other drunk or uses alcohol to persuade a reluctant person whose defenses are diminished into sex. Let’s focus on cases where both parties participate with enthusiasm.

Jane in this story and I were in very similar circumstances. So, you might think that the two cases are morally (if not legally) alike. Both Jane and I did something foolish for which we should slap our heads and remind ourselves not to do that again and to move on. Or perhaps both Jane and I were victims of a serious violation, even perhaps rape victims. I am somewhat inclined towards the first of these options – but I will be accused of being “outdated”. My students and younger Facebook friends wield this word like a weapon of refutation. “Your view is not in line with contemporary thinking. You are wrong,” they will likely say.

It is odd that I could be so wrong about my own experience, though. 

Perhaps, some will say, you are right about your own experience. Perhaps you weren’t violated, but the rules have changed. The behavior you describe was not wrong in the eighties, but it is wrong now. So, what happened to you was not wrong but what happened to Jane was. Rules about sex have changed. 

There are other examples of this sort of change they can point to. Consider the song, “Baby it’s cold outside.” When first recorded by Frank Loesser, and on many of the occasions it has been played since, it was regarded as playful, flirtatious, the man asking the woman to stay, the woman saying no, the man trying to find better and better arguments, she saying no, but seeming to enjoy the dance. Recently a more politically correct version of this song was put out by Lydia Liza and Josiah Lemanski, in which he asks, she says no, he says “OK I’ll call you a taxi”. Commentary on the original version is that it is “rapey”. 

One take on this is that it was always rapey, but people didn’t realize that back in the last century; another is that this sort of behavior was OK back then, but similar behavior now is wrong. 

Let’s consider this second idea. To my philosopher’s ear, it sounds very much like ethical relativism. We disagree about virtually everything, but almost every philosopher will tell you that ethical relativism is a bankrupt view. Ethical relativism is the view that right and wrong changes from time to time and from place to place because right and wrong are a function of what a majority of people in a particular society approve and disapprove of. A majority of Americans used to disapprove of same-sex marriage but now a majority approves of it. Americans disapprove of polygamy while Senegalese approve of it. 

If you embrace ethical relativism, you will think this means that same-sex marriage used to be wrong (in the United States) but that now it is not wrong; and that polygamy is wrong in the United States but not wrong in Senegal. And, of course, that having sex with drunk people was not wrong in the eighties but is wrong now. It is always tricky to know what a majority thinks but it seems fair to say that attitudes on these matters have changed. So, if ethical relativism is true, then it makes sense that what is right or wrong in this area has changed.

But ethical relativism faces serious problems. It used to be that a majority of people thought that slavery was morally permissible, and a majority thought it was wrong for women to vote or receive an education. Shall we conclude that slavery used to be morally permissible and that it used to be wrong for women to vote or receive an education? Surely not. Don’t we think instead that we have made moral progress in changing our attitudes on these matters? That we have a truer set of views than they did? 

If ethical relativism is true, then their views were as true as ours, just different, and changes in laws to abolish slavery, give women rights, and so on. are just changes in fashion, like changing lengths of skirts. Moreover, when we look at other societies or groups that practice female genital mutilation and marry ten-year-old girls to adult men, if we embrace ethical relativism we must say again, that they are not wrong, just different. 

I want to say that these practices are wrong. If you object that I am endorsing a sort of moral cultural imperialism – our values are better than their values – note that we might also want to criticize our own society, even for practices and attitudes embraced by the majority, but ethical relativism makes that impossible. For example, suppose you think that the inequality in the US and factory farms are wrong. If you embrace ethical relativism, you are in a bind here. You cannot say these practices are wrong, and that these practices are approved of by a majority of Americans, and also say that an act that is approved of by a majority of members of a society is not wrong. This is a contradiction. For these and other reasons, I reject ethical relativism. I believe that virtually every teacher of moral philosophy will concur on this point. So, we cannot simply deal with the puzzle of my case and Jane’s case by endorsing ethical relativism.

Maybe a more nuanced view can imply the plausible aspects of ethical relativism without its problems. For example, consider the view that there are universal truths about morality but that how they get applied varies depending on changes in convention. For example, whether the use of a certain word or symbol is wrong may change over time, not because ethical relativism is true, but because there is a constant moral fact: using racial slurs and insulting people is wrong, but whether a certain term counts as a slur has changed. 

Could something similar happen to sex? Could certain sexual behaviors come to count as deeply offensive and even injurious in part due to changes in conventions? Rape is a serious wrong, at least in large part because it causes deep trauma to the majority of victims. Add that the boundaries of what counts as rape are somewhat fuzzy and disputed. If we as a society choose to set these boundaries more broadly, to make the category of sexual assault and rape larger, to cover more cases, some of the trauma that comes with being a rape victim will extend to include these new cases. 

For example, if at one time, a forced kiss was regarded as an annoyance, the victim of such a kiss would shrug it off as bad manners. If later, a forced kiss is classified as a form of sexual assault, some victims of such kisses will feel that they have been assaulted and experience the event with some of the trauma of a rape victim. Having sex while intoxicated seems to fall in this fuzzy borderline region. 

Perhaps something like this can explain the difference between my experience and Jane’s. She was primed to experience what had happened to her as rape; I was not. She was seriously hurt. I was not. In this way, we might be able to render different moral judgements about these two cases even without embracing ethical relativism.
Is such a change a good change? Do we want to extend the range of people who feel themselves to be victims of sexual assault? Do we want to extend the range of people who are guilty of sexual assault? Sometimes, the answer is yes. The fuzzy concept of rape has been expanded to include marital rape and not to require the use of force. These expansions are good and right. But the expansion of the concept to include cases like Jane’s seems less clearly good.

Would I be better off if I had felt myself assaulted, had taken my case to court, suffered from PTSD and had years of therapy? No. Looking back on my crazy eighteen-year-old self, I still want to slap her. Drunk sex (of the sort I’m focusing on here) is a bad idea, but I don't believe that the best solution—for anyone—is to treat it as a monstrous wrong and to criminalize it.