By now, traditional feminism has moved to a place where it's OK to air doubts about what date rape is and whether it can and should be prosecuted. Laura Sessions Stepp defined "gray rape" as "sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what." According to Stepp, 62 percent of female rape victims say they knew their assailant. For college women, she says, the stat is nine out of 10. Stepp was mildly chided for her "gray rape" ideas. But she also prompted recognition from women who had experienced confused drunken nights in their pasts that they couldn't really define—certainly not clearly enough to go to the police or any other authority about. Some feminist voices began to admit that, yes, the hookup culture and dating in general had blurred into a charcoal smear their own line between consenting and being sexually assaulted.
Feminists may be working out their own rape doctrines, but these are still likely to be useless for police and prosecutors. Nonconsensual sex between two people who know each other, whatever you call it, is a terribly awkward fit for our adversarial criminal justice system. It often comes down to two competing accounts, an accusation and a denial, and no physical evidence to definitively settle the dispute—no injuries, no one near enough to hear screams or calls for help. Add drugs or alcohol to the mix, and you can pretty much forget it.
Former prosecutor Linda Fairstein laid out the problem at a Cosmo panel our own Jessica Grose covered for Jezebel:
"There is no such thing as gray rape in the criminal justice system. …" If a woman is blackout drunk—ie she is actively engaging in behavior but not creating new memories—rape will be nearly impossible to prosecute. " 'I would never have said yes when I was sober,' " Fairstein said, "will not stand up in court." "Men are responsible," Fairstein continued. "They shouldn't be having sex with wasted women. Vomit should probably be a red flag... But teaching responsibility to young women is just as important. You don't have to drink eight drinks. You don't have to get blotto."
Let's agree that something disturbing happened to that 18-year-old woman at Hofstra. Something she feels awful about. Any good, right-thinking feminist, and any good girlfriend, would encourage her to talk to a counselor about her story. The problem is that by going to the police and then recanting, she fit into a new story that backfires on her and on feminism in an ugly way. She becomes the false accuser, and the boys, like the Duke boys, become the victims. In these moments of recantation, all we can talk about is how wrong she was. And then we lose the conversation that happens at a level beneath the law: about how these late-night moments in a random bathroom that everyone regrets can stop before they start. I'm not sure how you do that. But I wish this was where we'd go, now that we know that whatever happened to this girl, it wasn't the legal definition of rape.
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