“She meets me back stage. I give her Quaaludes. We then have sex." In previously sealed testimony from 2005 that surfaced this week, Bill Cosby had confessed not just that he had drugged women, but that he did it so often he had seven prescriptions for the powerful sedative. More than two dozen women have accused Cosby of raping them in incidents that span four decades. But even though the women were presumably incapacitated, Cosby — and his defenders — wouldn’t call it rape. “This is about the obliteration of legacy,” Cosby’s former costar Phylicia Rashad said in defense of him last year. Really, though, the details that have emerged about Cosby’s behavior toward women seem to be more about the obliteration of memory. If women aren’t fully awake to experience the assault, they make less reliable witnesses. A person’s autonomy doesn’t slip away with consciousness. But, all too often, her credibility does. Given decades-old feminist talking points about how rape is a crime of power, it would seem that cases involving unconscious women — people who are extremely vulnerable and, by definition, not in control — would be the easiest to define as rape. But, somehow, it takes us longer to believe the stories of survivors who were unconscious at the time of the assault. They remember fewer details. They can’t say, “I tried to fight back.”
A person’s autonomy doesn’t slip away with consciousness. But, all too often, her credibility does.
The assault victim in the Steubenville case didn't even know what happened to her until she learned about the next day — as is the case for a lot of alcohol-related assaults. This was used to question “how bad” the assault really was. Many people also draw a distinction between sex and rape based on whether the victim was drugged against her will — as in the case of Cosby’s accusers — or was incapacitated on her own terms, such as a college student who has passed out after doing too many shots at a party. Earlier this year, the Utah legislature agreed that unconscious people can’t consent — however, not without having a vigorous debate about it first. One Republican representative could handle the idea that an unconscious person cannot consent to sex on the first date, but seemed to think cases “where people have a history of years of sexual activity” were a different story. This idea, that consent in one context means you’re giving that partner permission to access any part of your body in perpetuity, is widely applied outside the bounds of consciousness. The 2010 assault allegations against Julian Assange related to his behavior with a woman who previously consented but had passed out. According to The New York Times, "The woman in question, a WikiLeaks groupie, let him spend the night at her apartment and had consensual sex with him at least once (reportedly with a condom). She then testified to falling asleep and being woken later by him penetrating her (without a condom)." One of the features of the relatively new wave of “Yes Means Yes” consent policies, like those recently adopted in California and New York, is they make clear that either partner can say no or stop at any point. A lack of resistance does not imply consent, and anyone who is drugged, unconscious, or asleep cannot consent, either. A sober “yes” at 7 p.m. does not automatically equate a “yes” several hours and several more cocktails later. Especially if you’re not awake to utter the word.
A sober “yes” at 7 p.m. does not automatically equate a “yes” several hours and several more cocktails later.
The desire to have sex with unconscious people has been labeled “somnophilia,” which is classified by some as a deviancy and by others as a fetish. However, most kink is built on trust, and on mutual agreement that either party can stop things at any point. That's not possible when one partner is completely unconscious, even if they've given “advance consent” to sex before they passed out. Naturally, there's some guy on Reddit — ask him anything! — who explains, "I've done this with my girlfriend as well as another girl, both having a [complementary] interest.” He says he met both women online, and that each one was specifically looking for “a guy to have sex with her while she was unconscious.” Consent prior to unconsciousness, he argues, means it’s not rape. But advance consent doesn’t often hold up legally. In 2011, the Supreme Court of Canada ruled that partners cannot agree in advance if one of them is penetrated while passed out — in other words, all “unconscious sex” is rape. The point of the law, wrote Chief Justice Beverley McLachlin, is “to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point." Certainly in the case of Cosby’s many accusers, they were not capable of asking him to stop at any point — that’s become increasingly clear now that we know he has admitted to drugging women. Some of his prominent defenders, like Jill Scott, have retracted their support. But, collectively, we still have a long way to go in acknowledging that all consent must be conscious.