Consensual Sex and the Double Standard

Back in September of 2014, California enacted a law requiring college students to get consent before they have sex.  The language is couched in gender-neutral terms, so that technically the law applies to men and women, either gay or straight.  But the primary intent of the law is directed toward heterosexual couples, and it is only the consent of the woman that is of concern.  In other words, the law is written in such a way that it appears to grant equal protection under the law to both sexes, even though we all know that a double standard will and ought to be applied in its implementation.

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.

Summer of ’42 (1971) and The Way We Were (1973)

The Way We Were begins in 1944. Katie (Barbra Streisand) runs into Hubbell (Robert Redford), a good-looking guy she met in college and whom she had a crush on. But as she is rather homely, her love for him was hopelessly unrequited. She invites him up to her place for a cup of coffee, but he is so drunk that without realizing what he is doing when he comes out of the bathroom, he gets undressed and falls asleep in her bed. She gets naked, slides into bed with him, and encourages him. Without really knowing what he is doing, he has sex with her, and she hopes he knows it is Katie he is making love to. But by the next morning, it is clear that he has no memory of what happened, and he merely thanks her for letting him sleep there.

In evaluating this scene, we must do so from the vantage points of three different periods: the last days of World War II, when the scene took place; the early 1970s, when the movie was made; and the twenty-first century, when we watch this movie today. In other words, each of these three different periods will tend to yield three different moral judgments about that sex scene.

But first, let us reverse the sexes. By today’s standards, if a man were to have sex with a woman while she was too drunk to know what she was doing, that would be rape, for she would be in no condition to consent. However, in accordance with twenty-first century egalitarianism, we would not limit it to just a man doing that to a woman. Rather, we would say that if one person had sex with a second person when that second person was too drunk to know what he or she was doing, then the first person has raped the second person. This allows for the possibility that a woman could rape a man, a man could rape a man, and a woman could rape a woman. In other words, by today’s standards, Katie raped Hubbell.

In 1944, when the scene took place, if it had come to light what Katie had done, no one would have called it rape. Katie’s behavior would have been condemned, but not as an act of rape. Rather, she would have been regarded as a slut, in that she had sex without being married. And in no way would Hubbell have been thought of as victimized.

In 1973, when the movie was released, the people who made this movie probably did not think of it as rape either. And given the fact that it was made after the sexual revolution, what Katie did was not condemned as slutty either. In other words, the audience of the early 1970s did not condemn Katie at all.

In fact, the people who made the movie in 1973 probably had no idea that over forty years later this scene would challenge our willingness to apply a single standard to both men and women when it comes to rape. In other words, if a man who takes advantage of a drunk woman can be charged with rape and sentenced to a year in prison, should the same sentence be given to a woman who does that to a man? In particular, if The Way We Were were set in the twenty-first century, would we say that Katie should have gone to prison for what she did to Hubbell?

Some people might argue that since she and Hubbell later fell in love and got married, that made it all right. But suppose a twenty-first-century Hubbell were to realize what happened when he woke up the next morning. And let us further assume that this twenty-first-century Hubbell was outraged and felt disgusted by what happened. Under those circumstances, should Katie spend a year in prison?

Such a distinction suggests that whether such an act constitutes rape depends not merely on the circumstances leading up to and including the act of sex, but also on what happens after the fact.  To reverse the sexes again, imagine a man has sex with a woman who is drunk.  The next morning, he calls her up, tells her he really enjoyed being with her the night before, asks her out for another date for that weekend, leading eventually to their getting married.  It will never occur to that woman that she had been raped.  But suppose, instead, that he doesn’t call her, and she later hears from her friends that he has been bragging about how he got a piece of old what’s her name, she may feel violated and end up bringing charges against him.

Determining whether Katie raped Hubbell would be further complicated if Katie had been as drunk as he was.  By today’s standards, if Katie were that drunk, it would be said that she was unable to give consent; and by today’s standards, a man’s being drunk is no legal excuse for taking advantage of a woman who is too intoxicated to give her consent.  Therefore, by today’s standards, had Katie and Hubbell been equally drunk, she could claim to have been raped, and Hubbell would be in trouble.

I confess that I have a double standard concerning rape in such a circumstance. First, I would find it hard to believe that even a twenty-first-century Hubbell would be all that put out by what she did. And second, I would not want to see Katie go to prison in any event.

But my views are not important. What is important is that this scene in the movie, imagined to take place today, tests our willingness to apply a single standard to both men and women in such cases. Most people I know, after some hesitation, will admit that they would not want to see Katie do hard time.

In a way, Summer of ’42 is a companion piece with The Way We Were, only instead of challenging our attitude about rape and the double standard when it comes to having sex with someone too drunk to give consent, Summer of ’42 challenges our attitude about rape and the double standard when it comes to having sex with someone too young to give consent.

With both movies, we pretty much have the same three time periods: the 1940s, when the movies were set; the early 1970s, when the movies were made; and today, when we watch them from the perspective of the twenty-first century. In Summer of ’42, a 15-year-old boy named Hermie (Gary Grimes) falls in love with a 22-year-old woman named Dorothy (Jennifer O’Neill). One evening, she gets word that her husband’s plane has been shot down over France, and he is dead. She and Hermie have sex, and the next day she is gone.

I never really cared for this movie, but that is neither here nor there. The sense of it was that Dorothy, in her grief, turns to Hermie for affection, and that what happens is a deeply meaningful and positive experience for him. Now, I don’t know what the laws were in Massachusetts in 1942, but I am pretty sure that in most states, if a 22-year-old man had sex with a 15-year-old girl, he would be guilty of statutory rape; and if found out, he would be sent to prison, especially when the jury was told that he had sex with her on the very night he found out his wife had been killed, for that would make him seem callous. Should we condemn the man but excuse the woman? Did Dorothy deserve to go to prison for rape, just as a man would?

Once again, as with The Way We Were, we have a situation in which there is consent after the fact, in this case, when the boy becomes a man. Does that matter? And if it does, what would our attitude toward Dorothy be if the adult Hermie was psychologically harmed? And once again we have to distinguish between the attitudes existing when the movie was set, when it was made, and the attitudes we have today.

Even today, the double standard lends itself to late-night humor. Typical was when Jay Leno was discussing a story about a female teacher that had sex with one of her male students, leading Leno to ask in exasperation, “Where were these teachers when I was in Junior High?” Humor aside, could Summer of ’42 be made today? More to the point, could such a story be told in a contemporary setting? Probably not. But I wonder if that represents a genuine change in attitude on the part of the general public, or simply a fear that a handful of radicals would stir up trouble, making the film controversial. I, for one, would have a hard time condemning Dorothy, even if the story were set in the present, just as I would have a hard time condemning Katie, even if that story were set in the present.