Ever since Steven Landsburg, an economics professor at my university, published a blog post dealing with the rape of unconscious individuals, my Facebook home page has been flooded with discussions of the topic. Some of the men, or rather boys, at my school have used this forum to describe how taking advantage of drunken girls at a party is different from raping them. I’m pretty sure the people in the Steubenville case thought the same thing, but look where they ended up.

Anyway, this article is for all the creeps frat boys out there who don’t see the difference between taking advantage of girls and raping them.

I’ll start off by looking at the idiom “take advantage of.” The definition of this idiom is: “To profit selfishly by; exploit.” When you take advantage of an intoxicated individual, you are exploiting a weakness. The only reason you need to take advantage of someone’s weakness is if you are trying to get them to do something that they wouldn’t do otherwise. If you are taking advantage of girls who are really drunk, that implies you are using their drunken state to bypass the need to obtain their consent, which they probably wouldn’t give you if they were of sound mind.

Examples of people of unsound mind include individuals intoxicated on drugs or alcohol. I would like to note that people of unsound mind do not have the “capacity” to enter into a contract. For instance, a marriage may be nullified if one of the parties was intoxicated during the ceremony. It is true that courts do not always like this defense, as the diminished capacity is self-induced; but if a person intentionally takes advantage of an intoxicated individual and coerces them into signing the contract drunk, the contract may be voided if the courts are feeling compassionate. The same should apply to cases where intoxicated women are taken advantage of by men with unsavory intentions.

I will admit that “taking advantage of a woman” is not always the same as rape, which is why they are not synonyms, but it is also true that many guys lack a clear understanding of when “taking advantage of a woman” becomes rape. This next part relies exclusively on the New York penal code, but the legal reasoning doesn’t vary too much from state to state, so I would suggest you keep reading even if you’re from a different state.

I will first address the crime of sexual misconduct (Article 130 – § 130.20). In order to be found guilty of sexual misconduct, you have to engage in an intercourse with somebody without their consent. If someone is intoxicated to the point that they are not of sound mind, then they cannot consent, and so if you have sex with them, you are going to be guilty of this Class A misdemeanor.

If the person you are taking advantage of is “mentally incapacitated,” then the punishment is even more severe. A person is “mentally incapacitated” if a person is “rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent” (Article 130 – § 130.00). Since the substance has to be administered without the person’s consent, this would be hard to prove at a party. However, if you try to convince a drunken girl to consume more of an intoxicating substance so that she becomes more willing to have sex with you, then it could potentially be construed as you administering the substance to her without her consent, since if she was already somewhat intoxicated, she would not be able to consent to accepting more drinks. Also, if you make her a drink that is stronger than what she is expecting or you spike it, and then you have sex with her, you are guilty of raping a person who is “mentally incapacitated.” This would fall under rape in the second or third degree, which are class D and class E felonies, respectively.

NewAdamOndoIcon-285x300If the girl you are taking advantage of passes out, then you may be hit with a first degree rape charge, which is a class B felony. This is because your victim would be “physically helpless,” meaning that she “is unconscious or for any other reason is physically unable to communicate unwillingness” (Article 130 – § 130.50). However, most of the guys I know wouldn’t consider having sex with an unconscious person, the same as “taking advantage of a person.” But I figured I would include this paragraph just in case.

There are defenses to raping drunk women, but these affirmative defenses usually revolve around the fact that you “did not know of the facts or conditions responsible for [the woman’s] incapacity to consent” (Article 130 – § 130.10). However, if you are bringing her drinks or even see her drinking at a party, you know her condition. In fact, you wouldn’t say you were taking advantage of her if you didn’t know she was drunk or in some other way incapacitated.

Unfortunately, drunken women aren’t often afforded the sort of protection discussed in this article. Odds are you aren’t going to be tried for rape or even sexual misconduct if you have sex with an intoxicated woman, but that doesn’t mean what you are doing isn’t wrong or that it isn’t rape. It merely means that you live in a country where the courts are oftentimes reluctant to prosecute creeps.

Adam Ondo | University of Rochester | @JoplinMaverick