If a man woke up next to a woman and could not remember having sexual intercourse with her we might surmise that he was so so drunk that he was not in a frame of mind to consent to sexual activity. Indeed, in a recent court ruling from a case I was researching, a judge determined that from the mere fact that the particular woman in the case did not remember having sex established a prima facie case that she was not conscious. While I think that court rulings such as that illustrate pervasive problematic beliefs that prevent men from getting fair treatment during rape trials I think that another question which ultimately ideologically underpins his disparate treatment in the hands of the legal system is simply not being asked. It's highly doubtful that the man in the situation I described could ever make a successful case that he was raped even in the rarest of circumstances or even if there was case to be made that she had a "guilty consciousness" because she lied to the police about whether or not she had sex with the man when DNA evidence proved otherwise, which actually formed the bulk of the case against the man in the court case I was researching. We would likely sympathize with her terror at being accused of a sexual assault, and her desire to clear her name even by a foolish means, especially if she felt that the very act of sex incriminated her without knowing that the case against her was of having sex when he was asleep as opposed to a heavily intoxicated state that the prosecutor she felt the prosecutor would argue impaired his ability to be conscious of the nature of sexual activity. Yet we never ask why a man is responsible for knowing when his sexual actions will lead to a regretful state of mind in a woman. It is doubtful that (with some exceptions) the man in the situation I described would think of himself as taken advantage of unless he had some very clear reasons to think he was asleep when sexual activity occurred in which case he wouldn't have been "taken advantage of", he would have raped without any question of whether he was too drunk to make an intelligent choice. He wouldn't because men are not taught to see there sexual choices as a source of regret. (Not in a way that is analogous to women, to be more precise to people who would contest that assertion) They are also taught that they are in control of their impulses. Aren't we teaching women that sex is something that women should regret and by doing so aren't we unconsciously reifying gender roles in a way that falsely creates a vulnerability in women that would not exist without those questionable discourses? I doubt we live in a culture that permits a non anonymous forum of philosophers to answer that question with freedom to express dissenting opinions from a dangerously entrenched orthodoxy but I want to put this question out there because so few people are asking these kinds of vexed questions.
Read another response by Daniel Koltonski