Wisconsin Makes Sex While Drinking a Crime

Wisconsin has made having sex with someone under the influence of alcohol a form of sexual assault.

The nation’s top party school could get a sobering jolt from a change in state law that puts alcohol on a par with date-rape drugs as an aggravating factor in certain sexual assaults. The change, long sought by rape- victim advocates in Wisconsin, means that victims who are very drunk during a sexual encounter can be judged incapable of giving consent, triggering a possible second-degree sexual assault charge. Prior to the change, which took effect in June, a victim who had been drinking typically had to be unconscious to be deemed incapable of consenting to sex.


[W]hile prosecutors say it is likely to be used only rarely – in cases in which victims don’t pass out but are so impaired by alcohol they are “unable to appraise their own conduct,” as one advocate put it – the change was heralded by experts who work with assault survivors. “Alcohol is the No. 1 date-rape drug, and we’ve felt strongly that our statutes should reflect that reality,” said Jill Groblewski, spokeswoman for the Wisconsin Coalition Against Sexual Assault.


Dane County District Attorney Brian Blanchard said the change was “long overdue” and is a good thing primarily for the message about alcohol that it sends – namely, that it can be just as dangerous as other drugs.

Blanchard also stressed that the somewhat lower bar on consent standards for victims does not extend to perpetrators, who can be charged for crimes whether they have been drinking or not. “Alcohol is not an excuse,” he said. “It’s our job to help jurors understand that people who want to commit sexual assault many times are going to take unfair advantage to get what they want.”

Dead Kennedys Too Drunk to Fuck While having sex with someone too drunk to, er, say no is, to say the least, incredibly boorish, it’s quite bizarre to say that it’s criminal. This gives a whole new meaning to the old Dead Kennedys t-shirts, thumbnailed at right. Language alert.

And the “message” it sends is mixed, indeed. On the one hand, being incredibly drunk “is not an excuse” for criminal behavior, including driving one’s car with a mild buzz on. So, we presume that people under the influence of alcohol are able to form guilty intent. Yet, these same people aren’t competent to decide whether to have sex?

Wouldn’t the better message to send be “If you don’t want to regret it in the morning, don’t get so damned drunk?”

By the way, Wisconsin isn’t going off the deep end here. Buried in the middle of the report: “Wisconsin had been the only state to exclude alcohol as a potential legal intoxicant in rape cases before the law change.” So, all 50 states now have this idiotic double standard.

via Radley Balko

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies 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.


  1. Bithead says:

    Did they with one stroke of the pen kill off the singles bar industry?

  2. So what happens if both parties are drunk? Or is this another one of those laws that only apply to males?

  3. just me says:

    Stormy I was wondering the same thing.

    I am betting the feminists were pushing this idiotic law.

    If a woman gets so drunk she is unable to consent, then I think her poor choice was in the choice to drink to the point she couldn’t control herself-no real excuse for the man, but I really don’t think this is criminal, it is just stupidity on the part of the participants, and stupidity isn’t always criminal.

  4. Of course, the “nice dinner” law will have an even bigger impact. The law makes buying your date a nice dinner a form of sexual harassment (if no bodily fluids are exchanged) or sexual assault (if bodily fluids are exchanged), because the nice dinner might cloud their judgements. We haven’t heard yet on the proposed amendment that men with lots of money could be charged with rape if they don’t marry a gold digger who has sex with them.

  5. McGehee says:

    …or refuse to have sex with a golddigger who wants to marry them.

  6. Sundown says:

    Here’s my perspective (male Wisconsin resident).

    I agree with the essence of the law. Alcohol, in so many cases, unfortunately functions as a drug to aid in rape. The problem I am a bit concerned about (and I haven’t read the bill yet, just the news stories) is how broadly “intoxication” is defined, as it would be very bad to assume that a drink or two would be universally incapacitating. Also, the law would, of course, need to be applied evenly in regards to the sexes.

    Nonetheless, we as a people need to get away from the notion that people who get drunk deserve to be taken advantage of sexually. Particularly, why is there an assumption that it’s the woman’s job to avoid rape by not getting drunk? From the perspective of a guy, it’s simple; if a woman is drunk, even if she seems “willing” to do the deed, just don’t do it. Simple.

  7. just me says:

    Particularly, why is there an assumption that itâ??s the womanâ??s job to avoid rape by not getting drunk?

    Well I am a woman, and this is the safest choice on her part. It isn’t so much that she deserves it, but that it is a good choice to not place yourself in a situation where you can’t have an easy route for escape. Getting plastered to the point that you can’t say “no” or say “yes” without thinking through isn’t a wise choice. I don’t think the guy who has sex with a woman in this circumstance is acting criminally in most cases.

    I think this kind of law actually gives the woman way too much power-especially in a next day regret situation.

    From the perspective of a guy, itâ??s simple; if a woman is drunk, even if she seems â??willingâ?? to do the deed, just donâ??t do it. Simple.

    Great advice and I agree with it, but what if the guy is drunk too, which more often than not is the situation. Is he more or less criminally cupable? Since the intoxication absolves the woman of her part in the situation, does it also absolve him?

    Like I said, this law I think seeks to criminalize stupidity on the part of people who got to drunk to think things through. Maybe we should just let people learn from their own stupidty, rather than criminalizing one of the parties and absolving the other.

  8. Rodney Dill says:

    There obviously must be an exception during or immediately following Packer games.

  9. boisetrader54 says:

    I believe it goes beyond an “idiotic double standardâ?? I believe that it is a de facto violation of the equal protection clause. I feel that it is also extremely frightening that government continues down this “BIG SISTER” frame of mind. George Orwell would be proud.

    I agree with ‘just me’ government should not even be involved in these types of situations. It is a form of tyranny and is exactly what the founding fathers would be against. They were against an overly invasive government. These types of laws are overly invasive and chip away at the legitimacy of the government. This madness must end.

    P.S.–‘just me’ great observations.

  10. ally says:

    I completely agree with the law and am disgusted what some people have been saying. You won’t get charged with rape until the person you had sex with is so drunk that they are practically unconscious. Then, they have to be able to prove it. It’s not a law saying, if she has a beer or two and then regrets it in the morning you can be charged with rape.

    If a girl or boy is at a party and is so drunk that they can’t walk or talk, then no one has a right to try and have sex with them. Thatâ??s what this law is for. Itâ??s for those revolting people who wait until someone is so drunk that they are blanking out and falling over before they try to get that person alone to have sex. You all have to agree that’s wrong.It’s not the person’s fault for drinking, and it’s most likely they don’t realize how bad off they are..we don’t plan on getting trashed at a place that puts us in a bad situation.

    If the person has barely had anything to drink and is capable to talk and consent, then even if they try and charge you, it’s a long process that the person has to prove they weren’t able to consent. Rape is crime where it’s the victim’s job to prove their case. So donâ??t be thinking lots of women are going to be able to take advantage of this law for regretting sex. Yes, some people will try and use this law because of regret. But, then all they have is their word, not evidence…so it’s highly unlikely a person will be wrongly convicted.

    Have compassion, and think this through before you post hurtful comments. If someone is raped while they are drunk, they have a lot of guilt and shame already..so stop saying it’s their fault for getting drunk in the first place. There is a *very* small percentage of people who lie about rape and take it to court.

    People can be so ignorant.