A few days ago I wrote a post about sex in men’s rooms, and among the issues I discussed were whether or not some of the men who have sex in restrooms are “straight.” (I don’t think they are entirely straight, although I do think many of them are bisexuals who lead heterosexual lives but who nonetheless want to enjoy homosexual sex without having to acknowledge it, which the anonymity of the restrooms facilitates.)
However, when I wrote the post I was I was presupposing that when sex occurs in mens’ rooms, it occurs between men. Perhaps I shouldn’t have made that assumption, for I now see that a heterosexual couple (consisting of one man and one woman) were arrested for having sex in a men’s room. The woman says that the incident has ruined her life:

A Carroll woman who was caught having sex in the men’s room at an Iowa Hawkeye football game in Minneapolis last weekend says she’d had so much wine before kickoff that she doesn’t remember walking into the restroom, the man she had sex with in a stall, or when the police opened the door.
What Lois Feldman, 38, will remember is the humiliation afterward.
“It’s ruined my life,” she said through tears today. “Not just the incident but the press.”

I wonder whether an alcohol blackout defense or tears would have worked for Larry Craig. Somehow, I doubt it. Interestingly, the police never tested the couple’s blood/alcohol levels, because it was irrelevant to the charges.

Feldman, a married mother of three, has been the target of Internet jokes and prank telephone calls today. She was fired this morning from an assisted living center, where she had been an administrator.
Feldman said her husband, Kelly, has been supportive. She said he faults himself for not going with her when she left her seat to use the restroom before halftime.
“I don’t know what happened,” Lois Feldman said. “But I don’t deny that it did happen because obviously there are police reports.”
Police ticketed Feldman, 38, and Ross Walsh, 26, of Linden for indecent conduct Saturday night.
A security guard who said he saw the two having sex through a gap in a men’s restroom stall flagged down campus police, according to the police report.
By the time an officer arrived, about a dozen people were cheering and laughing in the bathroom while Feldman and Walsh were inside the stall, the report said.
The officer pushed his way through the crowd, opened the door and separated Feldman and Walsh, the report said.
Police described both Feldman and Walsh as upset, drunk and uncooperative.
Chuck Miner, deputy chief of the University of Minnesota police department, said officers tracked down Feldman’s husband.
“I’m not sure how they made contact with her husband, but they needed her husband to help identify her” because she’d given the wrong middle name.
Miner said police didn’t measure the blood-alcohol level of Feldman or Walsh. Asked to respond to Feldman’s claim that she was too drunk to recall the incident, Miner said: “That’s probably an accurate statement.”
Feldman said she’d never met Walsh.
“I don’t know who this man is,” she said today. “I just found out his name in the paper last night.”
Walsh wasn’t immediately available for comment.

What’s fascinating about this is that in many jurisdictions, a man who has sex with an intoxicated woman can be charged with rape, and in California, sentenced to 8 years in prison. In effect, drunken sex is illegal if the woman complains later:

Bottom line, if a girl is intoxicated she cannot consent to sex and you could be charged with rape. It does not matter whether you knew she was intoxicated, it doesn’t matter if you were intoxicated too, all that matters is that she was not in a state of mind to consent and therefore it is rape. If you get a girl drunk or high and then “get together” with her you have committed a sexual assault. Again, it doesn’t matter if you are drunk or high as well. Your diminished abilities do not negate your responsibilities. A good rule to follow; if you are under the influence do not have sex.

What I’ve never been able to understand is why a woman who has sex with a drunken man can’t be charged with rape. Are the laws sexist? Or only their enforcement?
Here’s what the San Diego District Attorney’s Office says:

* Face the facts: If she’s wasted, intoxicated, asleep, or unconscious, she cannot give legal consent, even if she said “yes”
* Face the law: Rape by intoxication is a serious felony that can carry 8 years in state prison

Why doesn’t it say “if he or she’s wasted”?
Obviously, if a drunken man forces himself on a woman, that’s rape, right? But if a drunken woman forces herself on a man, and can later demonstrate she was drunk, he’d be chargeable with rape, under the theory that because she was drunk, she could not “consent.” Well, why is it that a drunken man can consent, but a drunken woman can’t?
Can a man consent to sex if he is drunk, but not a woman?
Is this fair?
Isn’t it sexism?
(An attorney writing in Mens News Daily about these disturbing new rape laws thinks it is, and he looks at several outrageous scenarios.)
This Los Angeles Sex Crime Defense Lawyer take a broader look at the law, and says:

“Having sexual intercourse with a person who is intoxicated, unconscious or asleep, and therefore unable to resist, is also rape.”

I guess that means man or woman.
Should I be reassured?
Let’s try these, um accusations out and see how they look, his-and-hers style.

“Your honor, I was so drunk I was unable to resist her. Therefore, I was raped!”


“Your honor, I was so drunk I was unable to resist him. Therefore, I was raped!”

For the life of me, I can’t see these accusations being treated equally.
Certainly not in light of this FAQ propounded by a public interest organization consisting of “the San Diego County District Attorney, San Diego Police Department, Sheriff, colleges, universities, the military, the Center for Community Solutions / Rape Crisis Center, and the Sexual Assault Response Team“:

5. What do I risk if I have sex with a woman who is intoxicated or “wasted”?
The penalties are severe. Rape by intoxication is a serious felony that can carry up to 8 years in state prison. In California, convicted felons are not able to vote, own firearms, or even sit on a jury. Plus, your job prospects quickly evaporate once your potential employer finds out that you’re a felon. Don’t forget that perpetrators of rape by intoxication, like other sex crimes, are required to register as sex offenders.
6. What does the law say about legal consent to sex?
There’s a big difference between consensual sex and rape by intoxication. The California penal code clearly indicates that if a woman is wasted, intoxicated, asleep, or unconscious, she cannot give legal consent to sex. This is true even if she said “yes” to sex earlier.

Whether the man says “yes” is of course laughably irrelevant. The rule is that men are considered to be inherently more capable of consent than women. (Similarly, men are considered to be inherently more capable of sexism than women, if indeed women are capable of sexism at all. That’s because men are strong and women are victims, and if you don’t agree, you’re a bigot! Forgive the irony.)
To return to the men’s room, while both parties committed a crime by having sex in public, given the California law, I don’t think the fact that the woman committed that crime would have much bearing on whether she was raped (at least in California). There’s just a kneejerk tendency (reflected in the summaries of the law) to see women who have sex with men as victims of the men who have sex with them — especially if the woman is drunk or intoxicated. Yet men — no matter how intoxicated — are never seen as victims of women who have sex with them, nor would an intoxicated gay man be seen as a victim of another intoxicated gay man.
I don’t know what the law is in Minnesota, but in California, it’s pretty clear that the man could be charged with rape. (With the woman seen as the victim.)
Beyond the sexism, what do you do if you’re one of those nervous, timid and neurotic types (man or woman) who can only have sex when you’re drunk? Is it fair for the law to declare you legally incapable of consent?
What worries me is that if they wrote and enforced the law in a fair and non-sexist manner, all drunken sex would become a criminal offense. So, if you’re a timid person who needs to get drunk in order to have sex, and you found another similarly oriented person, you wouldn’t even be able to protect yourselves by having drunken sex together. It wouldn’t be drunken sex. It would be mutual rape.
And it would not matter whether you were doing it in a public men’s room, or at home in your bedroom, or whether you’re man and woman, or husband and wife. In theory, even the husband and wife who have drunken sex with each other could be sent to prison for eight years.
I guess the Minnesota men’s room couple should consider themselves lucky.