Is It Acceptable to Have Drunken Sex?

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Brendan McDermid/Reuters

Is it acceptable to have drunken sex?

Most people who aren't citizens of the Islamic State or followers of some frigid Christian group will answer with an emphatic, "Hell, yeah." Not only is it acceptable, they'll think; it's good, one of life's great pleasures, a rare moment when you can ditch the pesky rational thinking required in everyday life and instead abandon yourself—mind, soul and genitals—to a moment of dumb, beautiful joy.

Well, enjoy it while you can, folks. Because like everything else pleasurable in the 21st century—smoking in a bar, complimenting a lady on her looks, drinking a bucket-size Coke—drunken sex is under attack from that new caste of killjoys who wouldn't recognize fun if it offered to buy them a drink ("unwanted sexual advance").

Drunken sex is being demonized, even criminalized; turned from something that can be either wonderful or awkward into, effectively, rape. They warned us for years, "Don't drink and drive." Now it's: "Don't drink and fuck."

Alison Saunders, Britain's director of public prosecutions, the boss lady of all the British state's legal actions against suspected lawbreakers, has issued new advice on rape. Sent to cops around Britain as part of a "toolkit" of tips for dealing with rape cases, it says society must move "beyond the old saying 'no means no.'"

Because apparently women are sometimes incapable of saying no when they would probably like to. When? When they're shit-faced, as Americans say; or pissed as a fart, as we Brits prefer.

"It is not a crime to drink," said Saunders (she might have added a yet, because I'm sure some teetotaler in the corridors of British power is working on this). But it is a crime "to target someone who is no longer capable of consenting to sex through drink," she continued. And she wants the law to be better able to deal with what the press has called those "grey areas" (50 Shades of Grey areas?) in which sex happens when someone is "incapacitated through drink or drugs."

Her advice to cops and lawyers is that in every case of allegedly dodgy, drunken, disputed sex, they should demand of the suspect: "How did [you] know the complainant was saying yes and doing so freely and knowingly?"

There are many terrifying things about this advice. The first is its subtle shifting of the burden of proof so that it falls to the defendant to prove that the claimant said "yes" rather than to the claimant to prove she said "no" and was ignored. As Sarah Vine of the Daily Mail says, this could lead to a situation where "men in rape cases [will] automatically be presumed guilty until they can prove they obtained consent."

In essence, this would mean sex becomes by default a crime until you, the drunken dude who slept with the drunken girl, can prove that your sex wasn't malevolent. Imagine raising such an idea in the year in which we celebrate the 800th anniversary of Magna Carta, midwife of the presumption of innocence, which for centuries has guarded citizens from the whims and prejudices of the mighty state and powerful prosecutors like Ms. Saunders.

But even worse is her thought-free mashup of drunken sex and rape, as if they're the same. When Saunders talks about sex that happens while one or both parties is hammered, she's sticking her snout—the state's snout—into what for many people is a perfectly normal part of life: college parties, house parties, youthful get-togethers, at which the truly shocking thing would be to see sober people getting it on.

She's following the lead of the campus killjoys: the Orwellian junior sex leagues masquerading as feminists who for a decade have been turning student sex into something foul and potentially criminal.

On both sides of the Atlantic, campuses that were once hotbeds of anti-The Man radicalism have become conveyor belts of conformist policymaking, particularly in relation to anything that has what these prudish heirs to Andrea Dworkin consider to be the rancid whiff of s*x. And what kind of sex do they loathe most? Drunken sex.

Numerous colleges now insist that it isn't possible to consent to sex if you're three sheets to the wind, which means that all sexual acts carried out under the influence are potential crimes. The University of Georgia warns students that sexual consent must be "voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest." There are many problematic words in that—imaginative? Can't we consent to sex unimaginatively, maybe by saying, "Oh, go on then"? But the most problematic is sober. Apparently, sex must always be booze-free.

These consent commandments are found on campuses across the West. At Oxford and Cambridge in the U.K., sexual consent classes are now compulsory for all freshmen. (Compulsory classes on consent? What delicious, Orwellian irony.) At these classes, students are told they must be of "sound and sober mind" to consent to sex. So, no paralytic, sozzled, WTF sex.

The University of Wyoming takes this authoritarian downer on drunken sex to its logical conclusion by warning students: "Sex that occurs while a partner is intoxicated or high is not consensual…it is sexual assault." If this stipulation were enforced retroactively, pretty much every person I went to university with could be arrested for rape. Everyone had a blind-drunk bang at some point, because it was fun.

Some of the sex-scared authoritarianism on campus merely mirrors shifts in certain states' laws, where intoxication is increasingly said to void consent. But elsewhere, the student anti-sex leagues are helping to reshape the law, as can be seen in Saunders's enthusiastic embrace of the idea that drunken sex is A Very Bad Thing.

It's hard to know what is most repulsive about this creeping criminalization of shit-faced sex. Is it the way it infantilizes women with its sexist implication that they are less capable of negotiating sexual encounters while drunk than men? (Hence the drunken man must shoulder responsibility for these apparently depraved shenanigans.) This echoes the temperance movements of the late 19th century, which likewise warned dainty ladies that getting blotto would lead to sexual misadventure and downfall.

Or is it the way it demonizes men, turning even the sweet, utterly nonviolent young lad who has to have eight vodkas to buck up the courage to sleep with his beau into that most heinous of criminals: a rapist? Or is it the fact that its aim is to deprive us of one of the great hoots of human life: stupid sex, where you don't know or care what is going on, where the condom is or even if she's on the pill? That moment of madness, that instant when feeling takes over and your brain has a night off, that time when you can't string a sentence together but somehow you can still have sex…seriously, students, you should try this.

The big problem is the shift in recent years from talking about rape to "sex without consent." Rape is a violent word that describes a conscious act by a wicked man (usually) to defy a woman who says no and to force sex on her. Disgusting. Lock him up.

But "sex without consent" is a totally different phrase: It's more passive, signaling an act that doesn't require criminal intent and which can cover everything from rape as it was once understood to drunken sex, drugged-up sex or regretted sex. We've gone from punishing those who rape to casting a vast blanket of suspicion over anyone who has sex.

The cultivation of the new crime of "sex without consent" completes the state's intervention into private life. It effectively makes the authorities into the arbiters of sex itself, the judges of when sex is OK and when it isn't, of whether a particular drunken romp is acceptable or rape. Don't drink and fuck, or the state will fuck you—with or without your consent.

Brendan O'Neill is the editor of Spiked. This article first appeared on Reason.com.