The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Following up on my recent post about the confirmation process of Neomi Rao, I wanted to respond more generally to the point that Ted Cruz and various conservative commentators raised about what could possibly be wrong with telling women not to drink (or not to drink too much) to remain safe.
One problem is that there are lots of things that would make us safer, and yet we don't feel the need to inform people of each one. In the context of date rape, one way to stay safer is not to go on dates at all. Yet most people would not dispense that recommendation, even though ceasing going on dates would most definitely increase one's safety from date rape more than abstaining from alcohol does.
Inherent in that disparity in recommendations might be an assumption that maintaining the ability to go on dates is somehow important or worthwhile in a way that drinking alcohol is not. Perhaps that is accurate, but it requires more unpacking than mere assertions about statistical risk in the drinking scenario.
The second question is that of forum. Is there a way to tell college students to be careful with alcohol (for all sorts of reasons)? Sure! Hand out gender-neutral pamphlets at orientation that discuss safe quantities, levels of impairment, etc. Put up posters with that info. If that is genuinely the point being made (as Ted Cruz would have us believe, with his story at Neomi's hearing of what he would tell his daughters and how his drunk friend lost three of his limbs), there is a time and place to make it.
But is that always the point being made? I start squirming when I hear about how women need to share the "responsibility" of what happened. This must be broken down into two separate points: an evidentiary and an ethical one. Let us acknowledge for the sake of argument that evidence will be more difficult to establish when alcohol was involved in an alleged date rape (in reality, this remains to be proven). If the evidentiary burden is indeed met, does the fact that a woman drank in any way absolve of responsibility a rapist?
And to that the answer is a resounding no. The reason so many people are uncomfortable with the way that drinking advice wrapped into questions of responsibility has been used is the possible implication that 1) the man is somehow less responsible for rape if the woman was drunk and/or 2) the woman is somehow co-responsible in her rape if she was drunk.
Needless to say, this is where concerns about victim-blaming become significant. Supposed safety advocates seem a lot busier telling women not to drink if they don't want to be date-raped than telling men not to drink if they don't want to be accused of date-rape. And all that is why the protestations of Ted Cruz and others who advocate for good old-fashioned safety advice ring hollow. If all he cares about is absolute safety and not trade-offs, perhaps he can start thinking about the curfew for men.