Should Drunken Sex Be A Criminal Act? New York Seems To Think So.

After over a decade of doing this, I know when to tread lightly on certain subjects and sexual assault is one of them. I wrote an article about the MeToo Movement that was widely shared and was invited to appear on a CNN Town Hall, which I declined to attend because there’s no reward in nuanced discussion in a cancel culture world.

Yet I wouldn’t be doing my job if I didn’t still believe in nuanced discussion on my own website. I may be a dating coach for women but that doesn’t mean that all men are wrong in all situations. Drunken hookups are a perfect example. So…to cover my bases, ALL sexual assault is wrong and should be punishable to the fullest extent.

There. I said it. Then again, I don’t know anyone who disagrees with that.

But what Nancy Rommelmann does here is to make a compelling case that – without forgiving sexual assault – we should not criminalize “sex with booze.” 

According to recent New York law, “From now on, you will not be the ultimate arbiter of your own bad or good choices, at least not without fear of prosecution. We’re not talking getting roofied at a bar—current penal laws already list “mentally disabled or mentally incapacitated” (as well as “forcible compulsion,” “incapable of consent by reason of being physically helpless” and being below certain age thresholds) as reasons why a person cannot consent to have sex. We are talking ipso facto being considered incapable of giving consent due to having consumed alcohol. Should you choose to go ahead and have sex while drunk, you will by default be seen as a victim (or perpetrator) driven by what you wanted at the time, a person, in the charming words of Manhattan District Attorney Cyrus Vance Jr., “unable to control his or her conduct due to that intoxication.” 

A majority of my consensual pre-marriage sexual encounters would leave me liable to jail time.

Yep. You read that right. If I were in New York, a majority of my consensual pre-marriage sexual encounters would, apparently, leave me liable to jail time. You can see how this might be a problem. Rommelmann sure does:

“What happens if both parties are drunk? Whose word will take precedence? What if the parties remember things differently? What if they don’t remember things at all? How will the law square that someone cannot be trusted to give consent but can be trusted to know she or he did not give consent? What happens when “it seemed like a good idea at the time …” meets that morning moral hangover? What about claiming to have been drunk when you weren’t? What about when a rape charge obscures a more complicated situation? What happens when the courts are so clogged with voluntarily incapacitated cases that other rape cases have to wait, or see its victims shunted and the uphill slog to justice made that much harder?

Let me be clear: I believe women have historically been disbelieved when it comes to rape; that the backlog of rape kits in this country is vile beyond words; that the most vulnerable among us must be protected. But I will not pretend that telling women what they are allowed to do with their bodies, and when, is about safety, or freedom, including the freedom to have sex, drunk or not, that you might later regret (or forget). Aside from almost every adult I’ve known, I do not have data to support how often regret-sex occurs. Guess what? The governor’s office doesn’t either, but he, unlike me, is willing to criminalize it.”

Again, I don’t think anything about this take is controversial. Rape is wrong. Punishing a man for rape after a consensual drunken encounter is also wrong, isn’t it?

Your thoughts, below, are greatly appreciated.