Military Sexual Assault Policy: No Consent with Alcohol?

The military is cracking down on sexual assault. The pendulum may be swinging too far.

sex-signals-camp-pendleton

The Marines are moving beyond PowerPoint slides in teaching about sexual assault.

Gretel Kovach, San Diego Union-Tribune (“Marines Get Blunt Sex Talk To Prevent Assault“):

“Sex Signals,” a series of skits and guided discussions led by civilian actors from Catharsis Productions, also demonstrated that role-playing and blunt, bawdy talk make more memorable sexual assault training than slide shows.

[…]

In one scene, the presenters played two Marines on a date of sorts. As the action on stage and dialogue with the audience of real-life Marines unfolded, they exposed common misperceptions about sexual assault and how they benefit rapists, besmirch the reputation of everyone, and discourage victims from getting help.

Welcome to the game show “Not My Fault,” where a nice young corporal tries to explain why he is not to blame for hurting her, said Annie Rix, before assuming the role of “Amy,” the “hot chick” on base.

Amy said she was raped in her barracks room. She struggled, but he pinned her down and wouldn’t stop when she told him to.

George Zerante, playing “David,” insisted: “What happened is really not my fault. I did have sex with her, but I did not rape her.”

Amy and David had talked on the phone. They played pool one night. Another day she invited him to her room to “play some games.”

He expected sex and brought beer. She fired up the Xbox video game console.

David, a big guy with a much higher tolerance for alcohol, plied her with drinks. Amy got drunk and lost control. Between rounds of tickling, playful wrestling and kissing, Amy kept saying no. Then yes. Then no.

After David started sexual intercourse, she whispered stop once, then went limp.

Was it rape? And if so, whose fault was it?

Most Marines in the audience said Amy was partly to blame for being raped because she gave him mixed signals and got too drunk.

Wrong, Zerante countered. Everyone is responsible for curbing risky behavior and safeguarding themselves, but “don’t make excuses for rapists.”

The appropriate penalty for getting too drunk might be vomiting, a hangover, or “spending $72 at Taco Bell,” Rix said. Never rape.

Aside from assigning zero agency to Amy, who apparently lacks the slightest ability to refuse to continue drinking past the point of consciousness, this is of course right. But the training goes much further:

To ensure they aren’t misreading sex signals, the trainers recommended using a “verbal condom” for protection: ask for consent first, and check in again if your partner becomes unresponsive.

Shades of the 1990s and written contacts for sex at colleges, but good advice regardless. Aside from the question of consent, responsiveness is a highly desirable quality in a sex partner.

This, however, strikes me as a bridge too far:

Because it is difficult to judge how much alcohol incapacitates another person, the military pushes a “one drop” approach against sex after alcohol, urging troops to save it for another day if either party has been drinking.

“With all these trainings, they drill it into you. Once you have one sip of alcohol, that’s it,” Hopkins said.

[…]

Many of his friends “didn’t realize you can’t get consent with alcohol, because of the culture we live in kind of promotes that type of lifestyle where you just drink and hook up with people,” [Lance Cpl. Cody Ferguson, a radar technician] said.

In our Twitter conversation on this issue earlier this morning, John Schindler, a Navy Reserve officer and professor at the Naval War College, rightly worried about a system that treats “all men as potential rapists.” But I’m not sure how to conduct mass training about a problem that’s both impacting the entire force and yet isolated to a relatively few bad apples without forcing the training on the good guys, too. We simply don’t know who the bad guys are until it’s too late.

Given the degree to which both alcohol abuse and sexual misconduct are prevalent in the military—with the Marine Corps leading the pack because it’s younger and more male than the other Services—it’s important to find creative ways to correct these problems. Zero tolerance for rape, sexual harassment, and sexual assault is reasonable; they are, after all, crimes. And it’s crucial to educate people, especially young males, where the lines are.  But let’s not draw the lines stupidly.

Adults are allowed to operate motor vehicles at high rates of speed with substantially more than one drop of alcohol in their system. It’s just asinine to pretend that they’re incapable of consenting to sex after a drink or two. If she’s too drunk to know what she’s doing; it’s rape. If she’s had a glass of wine, it’s reasonable to assume that Yes means Yes.

This is bureaucratic overkill and it’s dangerous. You don’t change a culture that treats women as mere objects by replacing it with one that treats women as imbeciles incapable of regulating their own actions.

FILED UNDER: Military Affairs
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Todd says:

    From a training perspective, I actually like the “one drop, no sex” idea .. for guys as well as the women they are trying to pick up. The fact is, if you’re picking up intoxicated women at club, you’re taking a chance that one night of fun could have life changing consequences.

    And just as with driving, even from the first drink, alcohol can impair your judgment. I really do preach to my Airmen that they should give up their keys with the first sip (too many times I’ve heard DUI stories along the lines of “I only had a few, and I thought I was ok to drive”). I would say the same thing to my young single Airmen when it comes to cruising the clubs. As soon as you’ve had your first drink, you’ve hindered your own ability to determine whether or not your potential partner is too impaired to give consent.

    I’m not naive enough to think this is what’s actually going to happen .. (with driving or hook ups) .. but if the goal is to keep people out of trouble, it’s probably a reasonable “ideal” to set in the training scenarios.

  2. Matt Bernius says:

    @JJ:

    In our Twitter conversation on this issue earlier this morning, John Schindler, a Navy Reserve officer and professor at the Naval War College, rightly worried about a system that treats “all men as potential rapists.” But I’m not sure how to conduct mass training about a problem that’s both impacting the entire force and yet isolated to a relatively few bad apples without forcing the training on the good guys, too. We simply don’t know who the bad guys are until it’s too late.

    @Todd:

    From a training perspective, I actually like the “one drop, no sex” idea .. for guys as well as the women they are trying to pick up. […] And just as with driving, even from the first drink, alcohol can impair your judgment.

    THIS! to both of your responses to this issue.

    The fact is that any form of mass training is never about subtleties. Grey areas are great for debate and lousy for policy discussions.

    I agree that the question of the role of female responsibility is huge in these discussions. We can even extend it to the more passive participants in gay encounters. The problem is that, when it comes to sexual assault, responsibility is bound up with the concept of “fault” and “morality” in lots of problematic ways. As someone who teaching women’s self defense courses from time-to-time, trying to deal with this is really complex.

  3. Rusty Shackleford says:

    Aside from assigning zero agency to Amy, who apparently lacks the slightest ability to refuse to continue drinking past the point of consciousness, this is of course right.

    He doesn’t suggest Amy has zero agency, the fact that he lists reasonable punishments for her behavior suggest that he does believe Amy has agency. He just suggests that the punishment for using that agency to get blackout drunk shouldn’t include rape.

    Adults are allowed to operate motor vehicles at high rates of speed with substantially more than one drop of alcohol in their system. It’s just asinine to pretend that they’re incapable of consenting to sex after a drink or two. If she’s too drunk to know what she’s doing; it’s rape. If she’s had a glass of wine, it’s reasonable to assume that Yes means Yes.

    If it was being suggested as an actual policy which would punish men who slept with women who have had any alcohol at all, I would agree. But it’s merely a suggestion, and the downside of the suggestion is that it’s possible those who follow the rule of thumb will have to just sleep with people who will do so without drinking.

  4. James Joyner says:

    @Todd: @Rusty Shackleford: @Rusty Shackleford:

    It’s just a strange conversation. On the one hand, I’ve turned down sex with women with whom I’m in dating relationships–i.e., there had been multiple previous dates–when they’re overserved. Even when they’re the one making the move. It’s a good policy. On the other, the notion that a woman is being “plied” with drinks and is therefore not responsible for her lowered inhibitions is a dubious official position.

  5. Mike says:

    We will have to charge the woman as well if the guy drinks anything as well. The ability to get an erection is not a defense for the woman who has sex with a drunk sailor. This pendulum swing is why the sex assault/rape conviction rate in the army is about 30 percent when it is over 90 percent in most civilian jurisdictions.

  6. PJ says:

    @James Joyner:

    On the other, the notion that a woman is being “plied” with drinks and is therefore not responsible for her lowered inhibitions is a dubious official position.

    That is if this only applies to women.
    But this could also be applied to men who are too drunk to give consent or to make a correct judgment, but not too drunk to have sex.

  7. James Joyner says:

    @Mike: @PJ: I think we can simultaneously acknowledge that men are sometimes victims of rape and that male-on-female is far and away the modal type of rape, at least outside of prison.

  8. PJ says:

    @James Joyner:
    I agree, but the follow-up question is then if you believe that women can rape men or if only other men can rape men?

    —-

    The issue of consent is at the heart of what Assange is accused of in Sweden.
    He is being accused of having sex with a sleeping woman the morning after, who didn’t give consent at that time but did the night before.
    Another woman gave consent to have sex if Assange wore a condom, and he is then said to have torn it, and by that action the previously given consent would then no longer be valid.

    It’s not too hard to think of variants of those two situations where the roles are reversed and the woman doesn’t have consent from the man anymore.

  9. Jenos Idanian #13 says:

    This would have been simpler a couple of years ago. The policy is simple: if there’s seemingly consensual sex between two inebriated people, the drunken man is the victimizer and the drunken woman is the victim.

    But now with gays allowed in the military, it complicates matters considerably. If it’s two drunken men, are both punished? If it’s two drunken women, is neither punished?

  10. Neil Hudelson says:

    @Jenos Idanian #13:

    Too much stupid to unpack.

    You honestly think that this was the policy, and that if a guy came forward charging–and showing reasonable evidence–that he was raped by a woman, there would be no action taken?

    And you really think, because now homosexuals are given full, equal rights, we won’t ever be able to figure out who is an aggressor and who is the victim?

    See, this is why the Republican party is slipping into oblivion. The base voters are so stupid that “Penis=rape, Vagina=victim. Vagina-vagina and penis-penis? Well gosh, that’s just too hard to figure out” is their mentality. And these base voters elect reps with the same idiocy.

  11. Mike says:

    @James Joyner: yes but it is perfectly legal for two drunk people to have sex. It’s called college. But DoD seems of the idea that if the woman is drunk it is rape. That isn’t what the ucmj art 120 says; so why train as if it is.

  12. Gromitt Gunn says:

    I find myself reminded of an old “joke:”

    What is the difference between a straight Marine and a gay Marine?

    A six-pack.

  13. Jenos Idanian #13 says:

    @Neil Hudelson: The policy on many college campuses — those hotbeds of conservatism — is exactly as I described it: in cases of drunken sex, the male is responsible and the female is the victim. And the military seems to be going the same way.

    I wasn’t making any sweeping or even subtle digs at gays there, just a simple observation that the rule simply can’t apply in cases of same-sex drunken debauchery.

    Personally, unless there is some indication that one of the parties was less intoxicated than the other, or one had planned ahead of time to exploit another, or had somehow encouraged/manipulated the intoxication of the other, then both parties should share equal responsibility for any drunken actions. Regardless of the sexes of the respective parties.

    The “it’s always the man’s fault” rule was never a good one, and the introduction of same-sex liaisons into the equation simply shows how bad it is.

    I’m sorry you were too stupid to see the implications in my earlier comment, and please consider this pedantic elaboration an apology for not taking your intellectual limitations into account.

  14. Paul Nelson says:

    Why would any rational young man join the militaryin 2013, given the risks? (Oh! Not thinking of combat at all!)

  15. EMRVentures says:

    Wow, what the hell is it with this discussion that people don’t understand that if someone wants to have sex with you, that signal is conveyed in any number of ways, and if they don’t, that signal is also conveyed.

    And that, whatever signalling method was used, if one of the parties wakes up feeling assaulted or raped, there is a real big failing on the other party, regardless of alcohol or whatever.

    Who the fuck rapes or assaults a woman by accident, drunk or not? That seems to be the thrust of this whole discussion. Anyone who “misunderstands” or doesn’t get it right has got a really big problem.

    And so, the military, recognizing that they must educate down to the least common denominator, has done so. Normal decent people don’t need that training, but the LCD who do make everyone look bad.

    Any of you who are yakking that sexual mores on college campuses or in the military make it too hard to get to “yes” are really sick bastards, and should really rethink your outlook.

  16. Neil Hudelson says:

    @Jenos Idanian #13:

    Kindly cite these policies. Which universities have an explicit policy of “always the mans fault.”

    By all evidence you have never stepped foot on a college campus, so I’m really interested in how you’ve become so knowledgeable of campus policies.

    Again, Jay, provide examples.

  17. Todd says:

    @James Joyner:

    I wasn’t actually commenting on whether or not I think it’s “right” that a man should be the one who’s held responsible … especially if he’s been drinking too.

    However, my advice to young men would be that in today’s military, going home with someone when either of you has been drinking is taking a risk. Just get her number and call her tomorrow, when you’re both sober.

  18. KM says:

    I find I must agree with the alcohol policy as well – not in that it is an attempt to blame the male but an explicit acknowledgement that alcohol=impaired=trouble. i think it’s most curious that people are referencing times when they’ve had inebriated/drunken sex like it was no big deal. Newsflash: you got lucky that time, no guarantees next time.

    When you take something that decreases your attentive mind, you risk all sorts of consequences. We as a culture give a pass to alcohol that we don’t to other mind-altering substances. Concepts like “buzzed” or “just a few” miss the point entirely. Any decrease in conscious awareness is not a good thing when it comes to life choices like getting a car or sleeping with someone. You are not the best judge of whether or not you are in control because you’re already lost control you previously had. Sex after alcohol is a bad idea, a sign of poor impulse control that it has to be NOW instead of when everybody’s 100%. Those damn beer goggles, dontcha know……

    For the record, a man and women who drink and have sex are equally guilty of bad decisions. But as the drinker (of either sex) you absolutely must assume that the person you meet that’s had a few drinks isn’t the person they are sober. A yes now may not be a yes when they can think straight again. If they really meant it when inebriated, they’ll mean it when 100% sober. Responsibility starts with the drinker, something a military person should be intimately acquainted with due to the nature of their job. If you are not capable of understanding that, you shouldn’t be drinking, period.

  19. superdestroyer says:

    @Neil Hudelson:

    You may want to look up the problems that some states had with same sex divorce after they passed same sex marriage. That state legislatures did not anticipated that divorce would be different for same sex couples shows how short sighted bureaucrats and politicians can be.

  20. Todd says:

    btw …

    In cases of drunken sexual assault, it’s not necessarily assumed that it’s the man’s fault. It’s assumed to be the fault of the participant who kept going after the other wanted to stop … in most cases that just happens to be the man, Kind of negates the whole “well how do you apply this to homosexuals?” question.

  21. KM says:

    @ Todd:
    It’s assumed to be the fault of the participant who kept going after the other wanted to stop … in most cases that just happens to be the man

    I think this is what is really tripping people up here. Trying to make this about male-bashing misses this point – there are some women who don’t know how to accept the word “no” either. The sad fact is our culture is set up in such a way that a man who complains a woman took advantage of him against his will is treated incredibly poorly. This needs to be addressed in these classes as well.

    This is an aggression thing, an entitlement thing. The pusher who thinks they have the right to your time and attention. The one who thinks their attraction to you outweighs any hesitation you may have. The one who gets in your face, cajoles, and plies you with liquor to “change your mind”. Someone is under not obligation to hear the sales pitch or to buy whatever it is your selling and is certainly entitled to buyer’s remorse if swindled.

    Again, this is not a male thing – this is a willful violator issue. The fact that everyone keeps going back to the whole guilty-male idea might very well be because they are the most obvious visual source of the problem; going after the symptoms instead of the disease.

  22. Mike says:

    @Paul Nelson: you are correct. If an accusation of sex assault is made – the accused will be titled and entered into the National Crime Information Center unless the “victim” recants or some absolute proof is provided that it didn’t happen – this is the current practice of the Army’s CID. Once entered, it takes an act of God to get your name out.

  23. KM says:

    @ Mike:

    So maybe they just shouldn’t drink and decide? This seems like a real no-brainer to me. Alcohol=no, not worth the risk. What is so hard about this to understand for people?

    Don’t like the consequences, don’t engage in the action.
    And yes, that includes trying to get some.

  24. Mike says:

    @KM: It isn’t hard to understand and is good advice but there is nothing illegal about having a few and getting some. You may not like it and don’t approve but it doesn’t mean it should be made criminal which is the path this is leading. The reality is that no Servicemember – whether drinking or not – should be alone with a girl / w/o witnesses b/c they are subject to this witch hunt process.

  25. KM says:

    Just because something isn’t illegal doesn’t necessarily mean its a good idea.

    I think automatically assuming you can’t be alone with a female to be a truly self-defeating exercise. The whole conversation is tinged with a distinctly accusatory tone – men being afraid of women “falsely” accusing them. You seem to think avoidance is not only realistic but necessary. Women are over 50% of the population; you’re going to have to interact with them eventually unless you wish to go off to a monastery. A serviceman WILL encounter women and WILL have to work/speak/deal with them. And when they get out to the service, they have to deal with women there too with the habits they acquired over their tours.

    I can’t believe I have to say this: WOMEN AREN’T OUT TO GET YOU.

    Its better to learn how to function in a practical, sane manner. Avoidance is not practical. What is being asked of our servicemen is nothing less then understanding that YOU (the drinker) are ultimately responsible for what happens in your life. Not some woman trying to trap you, not some nefarious set up. A woman in the military is just as honorable, just as dutiful and just as human as the guy she’s standing next. You drink, you screw – expect that it might just get you screwed. Men and women alike understand this and play anyways.

    You seem to be offended that men are being preemptively considered guilty in this. Why the hell would you then go and do the same to the women?

  26. KM says:

    One more thing – there wouldn’t be any “witch hunts” in the first place if there wasn’t a massive assault problem. It’s very hard to elicit sympathy when they really do need to get their house in order. There are actual victims here – try to remember that.

  27. Mike says:

    @KM: I don’t think women are out to get me or anyone else. My entire point is that what the law says and what the politics and swinging of the pendulum have done are two different things. There isn’t a “massive assault problem” – at least the facts/evidence don’t bear this. (don’t point out the 26,000 number – there are so many problems with this figure). I agree that there is a higher risk of a man getting in trouble if he and the woman are drinking. But the standard is not whether she is drinking or drunk – it is substantially incapacitated. Read the law and read what this claims seems to claim that a drink = no consent.

  28. KM says:

    @ Mike:

    A few question then for clarification: at what point do assaults being a massive issue? How many drinks do it take to be substantially incapacitated? Why does something need to be BIG issue in order for some resolution to occur?

    Perhaps I error on the side of caution. I feel that one utterly preventable assault is too many, let only to the point where something is statistically significant. Threat Assessment is a military thing that should come into play here. Is the risk of nothing negative happening worth doing what I wish to do? What happens if I’m wrong? Worst case scenario? From the attitudes I’m seeing here, one would assume that the perceived negative (a witch hunt or false accusation) is bad enough to go to the length of never being alone with a female but not to adjust drinking habits??? It doesn’t make sense. One drink affect everyone differently. It just makes sense to assume it will cause an effect as to dismissing it as “only one” & you’re fine.

    People underestimate how much they’ve had and how it affects them on a regular basis. Wouldn’t a more prudent approach (from a CYA aspect at the very least) is one drink=hands off for a few hours? More than the whole women&witnesses thing?

  29. Icabod crane says:

    The marines are the biggest rapist in the military! They say one thing and then rape and allow it! Pendleton is probably the worst base for drugs and rape. The marines only group to not want women in combat because they are afraid of being accused of sexual assault! Maybe thats because they are doing it!

    There is overwhelming evidence the marines ignore rape victims, rape kids and civilians and nothing is done!

    the us marines rape com

  30. Chunky says:

    @Todd: Certainly gives new meaning to the designated driver concept…

  31. richard40 says:

    If you think drinken sex should be punishable, fine. But in that case shouldn’t the man and woman both be charged, instead of the man being charged with rape, and the woman being charged with nothing. Or if the man is charged with rape because she gave no consent, should the woman at least also be charged with the lesser offense of bad judgement or conduct unbecoming, for recklessly putting herself in a hazardous situation. An example, if a soldier recklessessly exposes himself to enemy fire, in a situation where it could not possibly gain anything, and the enemy wounds him, the enemy was at fault, but the soldier was also reckless.

  32. KM says:

    @ richard40:

    As I’ve said, this isn’t a male issue, this is a drinking issue. Yes, both parties if drunk are doing something stupid, are equally quilty. OF DRINKING & MAKING DUMB DECISIONS.

    However, the intitiator of the encounter (pursuer if you will) starts this whole mess in motion. You can drink consistantly alone and suprise! never be sexually assualted. It takes two and it takes someone to be the one to get the ball rolling. Drinking is not a crime; doing something to someone impaired (while you might also be impaired) is. The sad fact is many wait until someone has had a few and then move in to make their move. They deliberately uses and expect that alcohol will pave the way. Standard nightly practice in bars all over the world since alcohol was invented. Its utter foolishness to pretend otherwise.

    Question: when you go out drinking, do you worry someone will assualt you? No one should ever have to worry about that. Male or female. Any alcohol impairs your system to some degree – that’s just science. Quibbling about where to draw the line of consent on something that can flutate so wildly on factors like body weight, food intake, etc seems like an extremely poor and quite frankly arbitrary and unjust idea. How is the soldier supposed to know that about a person? They don’t – they guess. The more logical and fair-to-all distintiction is one=done. It’s very much a cultural issue we are arguing here: the idea of being able to hold your liquor.

    This whole conversation reminds me uncomfortably of the people who argue they haven’t done anything wrong when they drive “buzzed”. The nitpicking and quibbling about how much is enough, everyone else does it, how do they get their car home, and how they’ve never hurt anyone. They’re totally against drunk driving and are appalled you would compare them to such people. After all, what they do is different somehow. They’re not bad people like those other jerks.

    To use your example, yeah the solider didn’t make the best decisions but it was ultimately the enemy who shot and killed him. While he may have contributed, someone else did it to him. He wouldn’t have died if someone hadn’t shot him, regardless of how dumb he was being.