It is women that need protection against rape, even in the case where force is not used.  This is for several reasons:  First, men are bigger and stronger than women.  Not only is this true on average, but men and women tend to select each other on the basis of size as well.  Although the law is not intended to cover cases where force is used, for that is already illegal and does not need additional legislation, the size and strength of a man compared to a woman can be a factor in cases where consent is ambiguous. That is, a man can simply wear a woman out physically, until she becomes too tired to resist.

Second, it is the woman that can become pregnant.  This puts her at a severe disadvantage compared to the man.  Though birth control may make pregnancy unlikely, and abortion may be available to terminate it, yet it is a big problem for women nevertheless.  And while the man may find himself forced to pay child support if she has the baby, she will still have the greater burden in caring for it and raising it.

Third, a woman is more likely to feel violated by a man than a man would feel violated by a woman.  A major reason for this difference is penetration. Though a woman may be disgusted by the unwanted kisses of a man, or by his groping her, nothing can compare to being penetrated.  Furthermore, an erection is prima facie evidence of consent regarding the man, thereby undermining his ability to claim that he was similarly violated.  Apart from this, there may be psychological differences as well.  Some men think of sex as a matter of conquest.  And it is part of nature of sexual conquest to have a “love ’em and leave ’em” attitude, resulting in one night stands, which can make a woman who surrenders to such a man feel betrayed, especially if he whispered words of love as part of the seduction.  In fact, whether a rape has occurred may depend in part on the subsequent behavior of the man.  If a man refuses to have anything to do with a woman after they have sex, and possibly even insults her, she may feel violated; if he calls her up the next day and asks to see her again, thereby beginning a long-term relationship, that is another thing altogether.  In other words, whether a rape has occurred may have as much to do with the subsequent behavior of the man as it does with what happened just before and during sex.

Fourth, alcohol has one legal implication for women and a different implication for men.  People drink, in part, simply because it feels good.  But they also drink in order to get carried away.  I once had a girlfriend who, by her own admission, had been quite promiscuous in college.  During some pillow talk one night, she told me about all the one night stands she had when she was young, and I expressed amazement.  “I don’t think I could have a one night stand,” I said.  “In fact, I don’t think I would want to.  I have to get to know a woman first before I would feel comfortable having sex.”  Without the slightest hesitation, and through half-closed eyelids, she said, “That’s because you don’t drink, John.  Standing there cold sober, no one could do it. But when you drink, you feel like you’re in love.  And it’s easy to have sex with someone you love.”

Alcohol not only lowers our inhibitions, it also gives us cover for inappropriate behavior. Drinking gives us a license for license.  We are more likely to misbehave if we know that others will excuse this misbehavior as being the result of intoxication.  Therefore, a lot of people drink knowing it will not only make it easier to have sex, but also will be a prophylactic against shame the next morning.

The problem lies in judging when someone has consumed enough alcohol to get carried away, but not so much as to no longer be able to consent to sex. And here the double standard may strike some people as unfair.  If the woman is drunk, her saying “yes” to sex does not constitute consent, but if the man has sex with her, he cannot use the fact that he was drunk as a legal justification against a charge of rape.   So we end up with the situation in which if a man and woman who are equally drunk have sex, she can claim to have been raped, because the legal implications of being drunk are different for men and women.

But even if the woman is sober and only the man is drunk, their having sex will not be construed as her raping him.  No one has ever watched The Way We Were (1973), and thought that Katie (Barbara Streisand) deserved to go to prison for raping Hubbell (Robert Redford), even though she had sex with him while he was too passed-out drunk to know what he was doing.

The double standard here regarding alcohol, not holding a drunk woman responsible for saying “yes,” while holding a drunk man responsible for not realizing that she was too drunk to consent, is justified on account of the reasons given previously:  the size and strength of the man, the possibility of pregnancy, and the difference in the male and female psyches.

It is peculiar that the law seems to apply only to college students.  Although I support a double standard for men and women when it comes to sex, I hope we do not have a double standard for college students and all other adults. Presumably, women who are not in college are not fair game, and the “yes means yes” standard applies to them too.  It is only on account of the unique circumstance of young women living away from home and under the protection of a university that special legislation for coeds has been enacted.

Unfortunately, a double standard is a two-edged sword.  In affirming a double standard for sexual activity, we run the risk of having that double standard leach out into areas where it is inappropriate, such as in the workplace.  By saying men are more responsible for their drunken behavior than women, by saying women are psychologically more likely to feel violated and be traumatized by sex than men are, we run the risk of suggesting that women cannot be trusted with responsibility in the workplace, and that they are psychologically weaker than men.  It is partly for this reason that the law is stated in gender-neutral terms.  Although gender-neutral language allows the law to apply to gay couples too, I suspect that this gender-neutral language would still be there anyway, as if to suggest that a man has the same protection against being violated by a woman, and could thus bring charges of rape against her.  So, to keep from having a double standard for men and women in the workplace and in other contexts where sex should not matter, we pretend not to have a double standard for men and women in the matter of sexual activity.  I don’t doubt that someday a man will bring rape charges against a woman, saying he was too drunk to consent.  In anticipation of this event, allow me to smirk preemptively at such a claim.

This is our dilemma:  either we deny the existence of a double standard in matters of sex as being repugnant to egalitarian principles, and end up being forced to accept conclusions that are absurd or paradoxical; or we admit to the need to have a double standard in matters of sex, which leaves an opening for those who want a reason to discriminate against women elsewhere.