A former friend of mine and I were really drunk (REALLY) one night and hooked up, but I can't remember anything. He can remember some of it, which makes me uncomfortable. Is that technically rape?

EXPERT answer:

Dear Confused,

An apt pen name, if ever there was one- this is a confusing situation!  To begin, I’m really sorry you had this experience.  It is scary to not be able to remember things, especially when our body is involved.

To answer your question, rape is not a technicality.  There are a number of ways we have decided to evaluate what constitutes rape as a culture, but those definitions are limited by the field that has defined them.  I would include in this category of places that have defined rape: legal, medical, and social constructs. Most frequently when people are asking about the technicality of an incident they are wondering if it meets the legal definition of assault.

The state of Massachusetts defines Rape as the penetration of any bodily orifice by any part of the body, or by an object, performed against the victim's will, without consent, and with the threat of or actual use of force.  If it is known that someone is incapacitated, or should have reasonably known of the incapacitation, they are considered responsible for rape. There are two significant examples of Massachusetts case law dealing with incapacitation due to drugs or alcohol:

Comm. v. Blache , 450 Mass. 583 (2008)

In a rape case in which lack of consent due to intoxication is an issue, the prosecution must prove not only intoxication, but 1) that the intoxication rendered the complainant incapable of consent and 2) that the defendant knew or should have known that the condition rendered the complainant incapable of consenting.

Comm. v. Mountry , 463 Mass. 80 (2012)

Under the Blanche test, above, where there is evidence of the defendant's mental impairment, "not only must the Commonwealth prove that the defendant knew or reasonably should have known of the complainant's incapacitated state, but the defendant also is entitled to have the jury instructed that they may consider credible evidence of his mental incapacity, by intoxication or otherwise." 

All of this is to say - determining whether or not something constitutes rape is incredibly subjective.  And no judge, jury, doctor, or other person uninvolved in the incident has the ability to gauge whether you feel you were violated.  Think about your own feelings.  Do you feel it is acceptable to engage in sexual activity with someone when they are blacked out from drinking?  If not, that is a pretty good rule of thumb to apply to yourself as well. Bottom line: If you don’t feel this was okay, it wasn’t.  If today you feel okay and tomorrow you don’t- that’s also okay.  Give yourself room to change your mind and permission to feel whatever you’re feeling.  

However you choose to define this incident, there are people you can talk to, 24/7. The OSAPR hotline can be reached at 617-495-9100.  For college students you may also try Response Peer Counseling at 617-495-9600.  

I’m really glad you wrote.  


Director of OSAPR

STUDENT answer:

Hi Confused,

Thanks for writing. First off, regardless of how you choose to the define this experience, I’m just really sorry that it happened. Not remembering a night can be really scary, especially when the night included anything sexual.  

Your incapacitation is not your fault; it does not put you at blame. We go to college and the reality is that alcohol is a deeply ingrained aspect of college campus culture. As a community we need to be better about acknowledging this and engaging in conversations about the impact it can have on sex and relationships. I hope that the more people think critically about the effects of alcohol on sex and hookups, the less likely these experiences are to happen.

However, the fact that your former friend was also drunk does not make him less accountable. When someone is blackout drunk they are “incapacitated” and can be unable to consent to anything sexual. If he knew - or reasonably should have known - that you were too drunk to consent then he could be in violation of the Harvard policy.

And just to echo Alicia, what matters most is how this is impacting you. If you feel uncomfortable or violated or not okay about the night, that is valid and completely okay. There’s no right or wrong way to feel. Processing something confusing like this can be difficult and you should be able to do it on your own terms. That being said, there are people available to talk. Reaching out to supportive friends or the confidential resources Alicia mentioned could be helpful.

Wishing you all the best,