Advocates: Language in law leaves victims open to harm

To say the reaction to the Minnesota Supreme Court ruling late last month that overturned a rape conviction has been one of disappointment seems like an understatement.

In this case, the court’s unanimous opinion states that the defendant could not be guilty of rape because the woman who reported it voluntarily became intoxicated before their encounter occurred.

The court based its ruling on how the state legislature currently defines “mental incapacitation,” requiring a person to have become intoxicated by a substance without their knowledge or agreement.

“There are a lot of people who are told when they report now, and when their case is referred to a prosecutor, that, essentially, their sexual assault was technically legal,” Abby Honold, a sexual assault survivor and advocate, told Minnesota Public Radio, adding that the state’s definition has been a roadblock for survivors for years. “It’s always so heartbreaking to have to hear that from yet another survivor who came forward and reported.”

Even before the current #Metoo movement raised awareness online about how common sexual harassment and sexual assault are, conversations about consent — and the circumstances under which it can be obtained, like whether someone who is intoxicated has the ability to consent to sex — were already taking place.

To help further this conversation around sexual violence, consent and incapacitation as a result of intoxication is Heidi Zinzow, a professor in the department of psychology at Clemson University in South Carolina. Zinzow is a licensed clinical psychologist who conducts research on traumatic stress, sexual violence and violence prevention. (This email interview has been edited for length and clarity. For a longer version of this discussion, visit sandiegouniontribune.com/sdut-lisa-deaderickstaff.html.)

Q: What stood out to you about the Minnesota high court’s decision when you first heard about it? Did it raise any concerns for you, in your work as a psychologist and as someone who researches sexual assault?

A: What stands out to me is that the definition of incapacitation is inconsistent with the definitions and constructs we employ in the field of sexual violence research. Generally, we use a broader definition of incapacitation when identifying instances of non-consensual sexual activity. In other words, intoxication and incapacitation could occur via either voluntary or involuntary consumption of substances. A person may also be deemed incapable of providing consent due to age, intellectual and mental disabilities, physical impairment, unconsciousness and other factors. My concern about using a limited definition of incapacitation is that this could lead to overlooking, blaming or stigmatizing victims of violence who would benefit from support and resources.

Q: In a story from The Washington Post, a professor from the University of Minnesota Law School, who has written about the history of marital rape, says that courts have gone from requiring that women prove they displayed the “utmost resistance” to nonconsensual sex to “a more realistic understanding of how consent typically happens.” Can you talk a bit about what the public should know and understand about consent and how it typically happens?

A: One myth about consent is that consent can be assumed unless a partner demonstrates active physical or verbal resistance. However, in many cases of coerced sex, a person may either demonstrate passive resistance, or may feel too uncomfortable or fearful to resist. One widely used definition of consent is that consent requires overt action or words indicating a freely given, uncoerced, informed agreement to engage in sexual activity by a person who has the capacity or ability to consent. Along these lines, consent cannot be implied by silence, passivity or previous sexual experiences with a partner, and can be withdrawn at any time. In the absence of clear consent, it is generally considered the responsibility of the initiator of a sexual activity to obtain consent before proceeding.

Q: Based on the work and research you’ve done in this area, have you found any difference in a person’s ability to consent to sex based on whether they became voluntarily or involuntarily intoxicated?

A: This is a difficult question to answer, as most researchers would define unwanted sexual activity as non-consensual when a person was incapacitated due to substance use, regardless of whether or not the person was voluntarily or involuntarily intoxicated. In other words, we would not differentiate consent based on voluntary versus involuntary intoxication.

Q: In this case, the court is upholding and enforcing the law as it was written by the state’s legislature. But can you talk about victim blaming, what it is, and whether you think that this distinction between voluntary and involuntary intoxication could influence public perception and practice toward victims in similar circumstances?

A: The enforcement of laws such as this could potentially reinforce victim blaming behavior that holds victims accountable for the assaults that are perpetrated against them. An implication of this decision is that sexual assault is a justifiable consequence for an individual who engages in substance use or any other form of risky behavior. Reifying these beliefs can increase stigma and discourage victims from help-seeking. In addition, we have research to show that rape supportive beliefs — such as “a person is at least partly responsible for being sexually assaulted” — are associated with increased likelihood of perpetration. In reality, we know that the most effective ways to prevent sexual assault are to focus on preventing perpetration, which entails changing rape supportive cultural norms.

Q: What are some ways to reduce the disparities in seeking support that occurs between victims who were intoxicated, versus victims who were not intoxicated?

A: There are several educational prevention programs that have been developed for implementation in schools and communities. These programs focus on teaching the definitions of sexual assault and consent, challenging rape supportive beliefs, and promoting healthy relationships. They also provide information on resources, how to intervene as an active bystander in risky situations, and how to support individuals who have been victimized. This is an example of the kind of programming that can promote acknowledgment of assaults, reduce stigma towards victims, and encourage help-seeking.