Wednesday Q&A: Is it rape if I was drunk?

[EDITOR'S NOTE: ALTHOUGH THE INFORMATION IN THIS POST IS GOOD, THE POST ITSELF IS OUTDATED. IT WAS PUBLISHED IN JULY 2009. IF YOU HAVE ANY QUESTIONS AT ALL ABOUT SEXUAL ASSAULT PLEASE CONTACT RAINN'S AT 1-800-656-HOPE (4673).]Q:  Someone had sex with me when I didn't want to, when I didn't even know it was going to happen. I was drunk, and I assume he was too. I can't remember much except that I woke up to find him doing it, and it hurt (and it was my first time.) If I had been sober I would probably call it rape, but ... could he have really known what he was doing, since he was drunk too? My friends say it's rape but I feel responsible. Is it rape?

A:  I will try to be as definitive as possible: Rape is any act of sexual intercourse that is non-consensual. It doesn't matter if someone is drunk. It doesn't matter if you know them. It doesn't matter if you enjoy their company. It doesn't matter if you invited them in. It doesn't matter if you would have said "yes" under different, consensual circumstances.

It sounds like you’re asking whether the perpetrator in this scenario should be held accountable for his actions if he was intoxicated. He may not have had as much to drink. He may have. We don’t know. It doesn’t matter. I will say it again, because it bears repeating. Rape is any act of sexual intercourse that is non-consensual. Period.

I spoke with a legal expert to help address this. It’s a sensitive question, but it’s an important one. Multiple studies have found that alcohol and other drugs are used in the vast majority of date and acquaintance rapes. It’s very important that we take these crimes seriously, and that we hold perpetrators accountable for their behavior.

But we’re treading on legal ground here, so I turned to Jenny W., a legal expert who specializes in domestic abuse and sexual assault cases. “My gut reaction,” says Jenny, “is that if a woman perceives or feels she has been raped or assaulted, then she has.”

Legally speaking, each state has its own statute that defines, in often very specific language, the types of actions that qualify as sexual assault. These statutes distinguish varying degrees of sexual assault, each with its own measures for what must be proven, and a range of penalties if and when a perpetrator is found guilty.

So, all of that background information leads us to this, which gets at the heart of the question. Says our legal expert: “If a perpetrator is intoxicated, it could be argued [by the perpetrator’s attorney] that the assault deserves a lesser charge. But intoxication in its own right does not excuse the conduct under the law.”

Phrased another way, from the Wisconsin Coalition Against Sexual Assault: “Being under the influence of alcohol and/or drugs is not an excuse for perpetrating sexual violence. It does not give someone a right to hurt other people.”

Many perpetrators of date or acquaintance rape use drugs and alcohol as tools in their assaults – in fact, alcohol is the number-one date rape drug used in the United States. However, regardless of whether the victim was intoxicated, regardless of what she was wearing or where she was or whether she fought back or whether she knew her attacker – the perpetrator’s actions are not her fault. We cannot blame the victim. And we must hold perpetrators accountable for their actions.

Some alarming facts about date/acquaintance rape, particularly on college campuses and among young adults:

  • According to Harvard University, 1 in every 20 female college students is sexually assaulted each school year; 72% of those women are raped while they are too intoxicated to give consent.
  • A national study of sexual assault on college campuses found that 75% of male students and 55% of female students involved in date rape had been drinking or using drugs at the time.
  • The same study found that an alarming 84% of men whose actions matched the legal definition of rape said that what they did was definitely not rape.

Many online resources can help you learn how to reduce your risk of being drugged and sexually assaulted, the warning signs to watch for, and what to do if you suspect this has happened to someone you know. This online checklist is a good place to start.



Each Wednesday we feature a Q&A with an expert. This column is not legal advice, nor is it intended to take the place of legal advice, professional counseling, crisis intervention, or safety planning. For legal or emotional support or for safety planning specific to your situation, please access help from the National Domestic Violence Hotline or from a domestic violence agency near you. This column is intended for educational purposes only.

Please exercise the same safe, supportive, non-judgmental restraint in the comment section of the Q&A as you do for survivors, as many of them are reading.

Our volunteer expert, Carrie K., is a trained advocate who has worked with survivors of domestic abuse and sexual assault, as well as their families and friends. Her background includes hotline advocacy, community education, and awareness and prevention programming around issues of domestic violence. She currently works for a domestic violence intervention and prevention program in Wisconsin. She blogs at