"I go to a bar, I see a nice woman, I buy her a few drinks. . . . She says, 'I want you to have sex with me. . . .' Then I have sex with her. . . . Was I committing rape?"
The issue raised by host Ricky Rachtman on KROQ-FM's sex-talk show "Loveline" has reignited the date-rape controversy as young people ask what the boundary is between sex and rape. A small change in California's rape law cast a spotlight on the 123-year-old statute, which, among other things, restricts sex under the influence.
The law, enacted in 1872 and updated this year, says a rape is committed (among other circumstances) when "a person is prevented from resisting (sex) by any intoxicating, narcotic or anesthetic substance. . . ."
State Assemblywoman Diane Martinez (D-Alhambra) authored the Jan. 1 update, which deleted language that essentially said the accused had to be the provider of the drugs or alcohol. The rest of the law remained unchanged. "The only difference my bill made is that it doesn't matter if you're the person who \o7 bought \f7 that drink," Martinez says.
In trying to clear things up, Martinez inadvertently brought attention to gray areas in the gender-neutral law--gray areas her update didn't create. Many "Loveline" callers thought she was responsible for the entire law. "I was shocked at the way people misunderstood," she says.
The point of the law is to punish those who rape people who are passed-out drunk--or blanked out on other drugs. And while most experts agree that consensual sex after a few martinis doesn't constitute a rape, the words "prevented from resisting" could leave a lot to interpretation, they say.
On the radio, on campus and in bars, young people are asking: How drunk does an accuser have to be to be "prevented from resisting"?
"Any time you find yourself in a 'gray area,' you could be in big trouble," says Mike Chao, president of UCLA's Interfraternity Council. "Students need to be aware that if they engage in any sexual activity, they better be very sure it's consensual."
The fear among some young people, many of whom learned of the law through "Loveline," is that rape will be the charge if someone has sex with another who is woozy beyond her better judgment, even if she did blurt out something sounding like "yes." It is a sobering prospect for some, given the large role alcohol has in young America. (Nearly half the college students in the nation are binge drinkers, according to a study released in December.)
It was the hottest topic last month on "Loveline," a popular, 12-year-old radio show that airs Sunday through Thursday nights. Rachtman emerged as the biggest opponent of the law's vagueness. If he had known about the law when he was younger, "I'd still be a virgin," he said. Off the air, Rachtman proclaimed: "Booze \o7 is \f7 foreplay."
Some women also questioned the law.
"As women, I think we need to take more responsibility . . . for our own drinking," said a "Loveline" caller identified as Marilyn, 28, from Claremont. "I'm real tired of people using government as a crutch."
Another KROQ caller asked Martinez to introduce a bill that would clarify the law so that someone feeling vindictive the morning after doesn't try to claim she was drunk beyond her ability to resist. "We need to ask the assemblywoman to make this law stronger," the male caller said, "so this issue of consent and semiconsciousness is brought out and clarified."
Dr. Drew Pinsky, the other "Loveline" host, said he has supported laws that protect women "ever since I had a daughter 2 1/2 years ago. . . . But," he argued, "this law could be used for malicious intent."
The experts agree.
"There is ambiguity in that language," said UCLA law professor Peter Arenella. "If it was interpreted to mean that the mere fact of intoxication meant the accuser couldn't give consent, that would be a disaster."
L.A. Deputy Dist. Atty. Jane Blissert said most of the crimes she recalls prosecuting under the law during her eight years in the Sex Crimes Unit involved women who were raped while completely unconscious--a crime the law was apparently written to address. But she acknowledges that a case where a possible victim was conscious, but intoxicated beyond her ability to distinguish between yes and no, probably hasn't been tested.
Others say the law should stay: "A large percentage of the rapes that happen on college campuses involve drinking," said Gail Abarbanel, director of the Rape Treatment Center at Santa Monica Hospital.
A Columbia University study last year found that nine in 10 rapes on campus involve drinking by the accused, the accuser or both. "This law," Abarbanel said, "recognizes the situations in which a large number of rapes occur on college campuses."
The issue of rape on campus grew heated in 1993.
Ohio's Antioch College enacted controversial rules saying each step toward lovemaking--kissing, touching, sex--must be agreed to by each party with verbal consent.