This post is co-authored by Alison D. Kahler
"Drunk sex," attorney Matthew Kaiser insists in Time Magazine, "just isn't what we think about when we think about sexual assault."
That kind of mindset is the problem. In fact, Kaiser's claim that alcohol-fueled rapes aren't "the kind Joe Biden is talking about" is belied by the text of the White House report: "Many are survivors of what's called 'incapacitated assault': they are sexually abused while drugged, drunk, passed out, or otherwise incapacitated."
So in actuality, what Kaiser euphemistically calls "drunk sex" is exactly what Biden is talking about. To clarify -- as Kaiser never does -- it is impossible to obtain someone's consent when that individual is drunk. Again: We believe that drunk people cannot give consent.
As proof of the supposed unfairness of campus rape laws (a sentiment echoed in another Time Magazine clickbait piece by conservative scholar Christina Hoff Sommers), Kaiser invokes one of his clients, a male college student who claims to have been falsely accused of sexually assaulting a female classmate.
Kaiser does acknowledge that people shouldn't "[force] sex on [a woman] because she's vulnerable because she's drunk," but he goes on to say that his client -- who had sex with a woman too intoxicated to even remember the night's events (i.e. "blackout drunk") -- somehow did not use alcohol to force sex on another person. He relies on a fairly paltry showing of circumstantial defenses he hopes will obfuscate the main point: Because the victim was drunk, this should be considered rape, end of story.
Kaiser's "evidence" raises another point: He claims that texts sent by his client's roommates "showed that she consented." But even if you overlook the obvious problems with this scenario (e.g. did the roommates accurately describe the situation? Did they have a psychic pipeline to the victim's brain?) and take the text messages at face value, so what?
Consenting to one type of sexual interaction does not mean you consent to everything else. Even assuming that the victim did voluntarily and knowingly remove her clothes, this in no way means she consented to a kiss, let alone full-blown sexual intercourse. Consent is an ongoing process. Even if she had initially consented to engage in sexual activity, any subsequent request to stop needed to be respected. Otherwise, that's rape.
Contrary to popular belief, false accusations of rape are very rare. And although victims are consistently dismissed and even blamed for sexual assault, society -- even the supposed bastion of liberal political correctness that is Hollywood -- overwhelmingly protects and sympathizes with rapists.
Kaiser, it should be noted, has built part of his career around profiting off of sexual predators. He solicits putative pedophiles and child molesters on his law firm's website (quotation verbatim, errors and all):
If you or a loved one is currently facing a federal child pornography charge or investigation in Washington, DC, you need an experienced and zealous advocate to represent you. At the Kaiser Law Firm we understand the sensitive natured of child pornography offenses and work in tandem with our clients to protect their rights and good name…
Unfortunately, the FBI normally takes their time to gather evidence and conduct their investigation before bringing charges.
Kaiser sells his ability to protect the "good name" of people who watch, distribute, and produce child pornography. There is no evidence that his college client is different. Indeed, Kaiser never says his client didn't have sex with the victim. He instead makes the baffling claim that the rape (which he acknowledges happened) somehow doesn't count as rape.
It should also be noted that sexual predators on and off college campuses overwhelmingly use alcohol to incapacitate their victims. Child molesters do the same thing, intoxicating their victims with alcohol and drugs. Similarly, predators at bars or parties may target victims based on level of drunkenness -- not because inebriation is an invitation, but because they make a calculated decision to force unwanted contact on someone unable to refuse.
This should not be tolerated. Drinking does not mean someone is "asking" to be raped. Drinking does not make it okay to attack another person (something most men are perfectly capable of not doing). Drinking does not cause rapes to happen. The only cause of rape is sexually predatorial behavior; the only people responsible for rape are rapists. If alcohol is involved in an assault, it's because sexual predators have turned it into a weapon.
The fact is, it's still much more dangerous for women on campus than men. Despite Kaiser's hand-wringing, his son's chance of being falsely accused is much, much lower than his daughter's risk of being sexually assaulted (which has stayed roughly consistent since 1987).
When it comes to campus rape, the real unfairness is not that a few predatory boys have to face consequences for their crimes. The real unfairness is what is done to victims, and how seldom they are given justice.
Follow James R. Marsh on Twitter: www.twitter.com/marshlawfirm