Does Being Unconscious Give Sexual Consent : by Eliana Wagner

    In the year 2020, on the heels of the #MeToo movement, it is almost incomprehensible that a court could fail so magnificently in it’s understanding of consent. Yet this is exactly what happened when a Minnesota court ruled that a 20 year-old woman could not be considered a rape victim because she drank voluntarily.

 It didn’t matter that she had blacked out, that the rapist was a man she hardly knew and had no desire to sleep with, or that she never gave verbal consent. All that mattered was that she chose to drink, and therefore, according to the Minnesota court, she had given up her right to bodily autonomy. 

Unfortunately, this miscarriage of justice is not an isolated incident. Just four years earlier, after the Minnesota supreme court voted unanimously that someone could not be considered incopacitated if they had chosen to drink, Francios Momolu Khalil had his rape conviction overturned and was set free. 

Khalil had been convicted after a young woman had gotten drunk and fallen asleep at a party, only to wake up with Khalil on top of her. The woman had not only been asleep and therefore incapable of consent, but she actively said no and begged Khalil to stop. Yet Khalil callously sought his own pleasure and refused to listen, and for this all he faced was a misdemeanor. A case that can only be described as the paradigm example of rape was overturned because the victim chose to drink. 

As can be seen from these cases, these laws are more than a confused and antiquated approach to consent. Rather, they speak to a larger societal mentality that penalizes women for choosing to partake in the public sphere. By removing intoxication from the definition of mental incapacitation, the Minnesota courts have seen fit to weaken the already flimsy protections that rape victims possess. It is no secret that bars and clubs are viewed as dangerous places for women. Date rape detecting nail polish, Angel shot orders that alert bar tendors to predators, and the constant warning for women to move in groups speaks to a collective understanding that social environments carry immense dangers for women. 

Yet, much like the regressive rulings of the Minnesota courts, society has seen fit to place the onus of protection upon women. It is the women who must avoid drinking, women who must avoid walking alone, women who must dress correctly and and women who must carry pepper spray and rape whistles. Clearly, the burden of responsibility is never so heavy as when it rests upon a rape victim.

 These failures within the legal system are never more clearly articulated than in the devastating case of Daisy Coleman. When fourteen year old Daisy Coleman woke up, she was lying outside in thirty degree weather with no shoes. She had been dumped outside her home in Maryville Tennessee and was left for dead by two seventeen year old boys after a violent assault which had taken place the night before. After being plied with alcohol, seventeen year old Mathew Barnett raped Daisy as his friend, Jordan Zech, filmed. 

Initially, Barnett and Zech had been charged with felony sexual assault and possession of child pornography. Yet despite having a videotaped confession, the prosecution dropped the charges citing lack of evidence. After spending years working as a victims rights advocate, Daisy Coleman succumbed to the PTSD and depression she suffered from the assault and died by suicide at age twenty-three. Today, her rapists are both free. 

Cases like Daisy Coleman’s and Francois Khalil are emblematic of a larger failure within the U.S legal system. It is increasingly apparent that courts and prosecutors are more concerned with the rights of rapists than the rights of victims, and that the myriad of caveats that are determined to make consent appear to be murky and debatable, enable rapists like Khalil and Barnett to escape justice unscathed. 

Ultimately, the courts determining that a drunk victim is not a victim not only fails to protect women, but is tantamount to the legalization of rape and denies the right of victimhood to women who have faced unimaginable abuse.

s a vicinanza

I have found, from speaking with thousands of people since 1994, that no one plays the victim, that is impossible. Some people manufacture pain, to cover a deeper pain, that is hard to face. When we accuse people of playing a role, it is good to know, how that role manifested. There we find the attack, in whatever form that may be, that created the victim, every time.

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2 Responses

  1. Martin says:

    And insightful article that keenly illustrates the systemic nature of patriarchal oppression. It is evident that in both cases, the failure of the justice system was not the failure of individuals, but rather broader systemic failure that penalized women for failing to take exceedingly thorough precautions when they ought not have had that burden placed upon them. Hopefully, publicization of such cases will drive systemic reform such that said cases are a thing of the past.

  2. Tehilla Katz says:

    What a brilliant article! The author’s passion for women’s rights and empathy with the victims is evident. She eloquently highlights the blunders of the judicial system. I am confident that if she were a lawyer, she would be a remarkable success.