Equality and Consent

Ashe Schow is right about this proposal.

Gov. Andrew Cuomo (D-NY) proposed legislation on Tuesday that would close what he called a “loophole” in rape law.

Cuomo claimed that prosecutors cannot bring rape charges against an accused person if an accuser voluntarily consumes alcohol. Cuomo’s proposal would change the state’s definition of those who cannot legally consent to sexual activity to include someone who is conscious but allegedly too drunk to consent. Keen observers will notice how vague the idea of being “too drunk to consent” may be.

Formally this retains equality under the law, because it says “someone” rather than “a woman.” Pragmatically it establishes an unequal standard both because it intends to affect women differently from men, but also because alcohol itself affects women differently from men. Women get drunk on less, faster, and suffer more physically (including long term effects like liver damage).

Ultimately NY is proposing a standard that will hold that women cannot consent after a few drinks, while a man could after the same number. It’s none of the state’s business whether a woman chooses to consent after a couple of beers, as long as she did in fact consent. To say otherwise is, as Ms. Schow says, infantalizing to women. It treats their sexuality as once again a matter for a paternalistic state’s oversight.