Sexual harassment and assault training has proliferated, and some state legislatures require it. But the training is often bad, even counterproductive. Such training often misstates what the law is.
In schools, sexual-assault training sometimes equates consensual sex with rape, discourages reporting of rapes, or breeds complacency about risky behavior. Washington’s King County schools managed to do all three of these unfortunate things in just one sex education class.
The news article “Sex-education classes in King County tackle tough issue of consent” quotes misleading statements made to students by sex educator Rebecca Milliman. Milliman is the prevention and education coordinator at the Harborview Center for Sexual Assault and Traumatic Stress. The schools in King County, the region that includes Seattle, hired her to teach sex ed in health classes.
But she doesn’t seem to know the law about sexual assault well. She repeats the common claim made by “affirmative consent” activists that drunk sex is rape. But legally, most drunk sex isn’t rape. The complainant has to be unusually intoxicated for sex with her to be rape, to the point of incapacitation, not mere garden variety drunkenness.
Sex with a drunk person is not considered rape in any of the 50 states. It is not deemed sexual assault even under the broadest sexual assault laws, the ones in California, New York and Connecticut that require “affirmative consent” for sex on college campuses. Even under those controversial laws, the test for when alcohol makes the complainant unable to consent is “incapacitation,” not “intoxication.”
But the Seattle Times quotes Milliman getting this basic point wrong:
Questions about drugs or alcohol come up often, she said … students ask, what about if both people have been drinking or using drugs? Does that change things? (If both people are intoxicated, she tells students, neither can legally consent to sex, so it’s possible that either could be charged with rape.)
Many couples (including happily married couples) have sex while intoxicated, so it’s odd to claim that “neither can legally consent to sex” while intoxicated. Plainly, many people do.
Claiming that “either” partner “could be charged with rape” if they have sex while intoxicated could frighten women out of reporting rapes that need to be reported, lest they be accused of rape as well. A woman who is severely drunk and thus “incapacitated” is often raped by a man who is intoxicated but not incapacitated. His mild intoxication does not justify taking advantage of her more severe incapacitation. Women need to understand this to encourage them to report rapes.
Telling people that sex while intoxicated is banned could also breed a dangerous sense of complacency among some. If parents sending their daughter off to college for the first time think that schools will enforce bans on sex while intoxicated, they may falsely assume that colleges will deter such activity.
And as a result, they may be less inclined to warn their daughter to be careful about getting intoxicated around unscrupulous men seeking sex. Even though it is innocent young women who typically most regret having sex while intoxicated afterwards.