She Drinks, She Flirts, She Passes Out … Is It Rape?

Trigger warning: Material about sexual assault.

Around midnight at a college party, several young women soccer players are alerted that a 17-year-old girl is barricaded in a room with eight guys on the baseball team. Through a window, the women glimpse what looks like an assault.

They batter down the door and, as the men disperse, find a young, semi-conscious woman on her back, unmoving and naked from the waist down. Vomit trickles from her mouth down the side of her face and collects in a pool. Blood runs from her genitals. She mumbles, “I’m sorry.”

The women lift up the teen, wipe the vomit from her face, carry her to their car and drive her to a hospital. The next day, the girl remembers nothing.

This is the scene the soccer players and other witnesses describe at a De Anza College party in San Jose four years ago. Is it rape?

The case has just been tried in civil court because the Santa Clara, Calif., district attorney felt there was not enough evidence to criminally prosecute, since all involved were drunk.

In civil court, witnesses for the defense supplied other details. Earlier in the night, the girl was drunk and flirting. She rubbed up against a young man and grabbed his genitals. She performed a bawdy lap dance in front of other party-goers. She made a graphic sexual invitation.

Is it rape?

Today, the jury in the civil suit found the defendants not liable on any of 10 charges, including two counts of rape. I am not surprised.

I am not surprised because as a culture we are sorely unaware of the dynamics of rape and its motivations.

But I believe a rape did occur, and here’s why.

Rape is sex without consent, plain and simple. In this case, the plaintiff argued that there was no consent because the woman was intoxicated, unconscious, or both. Everyone agreed that six or seven hours after the alleged assault, the young woman’s blood-alcohol level was at least twice the legal limit for driving under the influence. However, unlike drunk-driving, there is no legal limit at which a blood alcohol level automatically indicates lack of consent. Hence, the plaintiff and defense argued over the timing of the teen’s peak blood alcohol level.

The defense expert testified that the teen had not reached peak blood alcohol level until after she had left the bedroom, while the plaintiff’s toxicology expert testified that she had reached peak level while in the bedroom. So expert evidence is contradictory.

However, when the soccer girls found the young woman, they say she was passed out on the bed and in need of help to rise up and walk to a car. That sounds like “peak level”–or at least, a level at which consent was impossible–before she left the bedroom.

Rapists rape for different reasons. Gang rapes, which are most common among sports teams, fraternities and criminal gangs, are often male bonding rituals meant to degrade a woman as men enact male superiority.

This was sex with a nearly comatose girl, an object–a sex object–used by others. The whole scenario looked more like a degradation ceremony than sex. One man left the room and told a friend, “There is a girl … basically getting gang banged.” Yet when the soccer players forced their way into the room, another man allegedly branded the teen, “a ho” who “wanted it.”

Another young woman came forward to say that one of the baseball players had raped her in the same small room 10 weeks before. But his insurance company settled last week, making him no longer a defendant and testimony about him inadmissible.

Defense attorneys asserted everything was on the up-and-up, insisting, “If it weren’t for the soccer girls, we wouldn’t be here.” The plaintiff rebutted: “If it weren’t for the soccer girls, the attack would have continued,” adding, “For how long? Hours? Would she have woken up in the morning?”

Some still, horrendously, blame the victim: She should have known better than to let herself get drunk, they say. The accused insisted she invited the behavior. She had propositioned the men.

Was the teen an unwise, and possibly troubled, girl? Maybe. Was she raped? By any reasonable standard, yes.

Photo from Flickr user flyheatherfly under Creative Commons 3.0.

The FBI might argue otherwise–according to their definition, only “forcible rape” actually counts as rape. Find out how you can help change that definition and ensure justice for rape victims at the No More Excuses campaign headquarters.


  1. Was the teen an unwise, and possibly troubled, girl? Maybe. Was she raped? By any reasonable standard, yes.

    See, this is what I don't get about rape apology. Yes, people can be unwise. Yes, they can do stupid things and engage in risky behavior. Does that excuse rape? Hell, no!

    • Stephanie says:

      Yes! Thank you for saying this! Her mental health doesn't matter, it frankly is not even worth mentioning. She is a teenager who did what many, many teenagers do. She went to a party, she drank, she flirted. If that is "unwise" and "troubled," then every teenager in this country deserves both those labels. She was raped because we live in a culture that excuses rape, and framing this horrific assault in this way, with the caveat of her "poor" mental health, does this young woman and every other teenager who engages in the teenage ritual of drinking at a party a disservice.

      • Exactly. People don't understand that, while it's unwise to be in a bad neighborhood at night, that doesn't mean that it's your fault you get mugged. Similarly, it's not smart to be a drunk girl at a frat party. That does not mean, by any stretch of the imagination, that it's your fault or that you were asking for it if they rape you. It's STILL a CRIME.

    • NobodobodoN says:

      The analogy I use is car theft.

      What if I left my car unlocked, windows down, in a high crime area?

      It’s pretty likely to get stolen. Was it bad for me to leave it there like that? Sure. Would the cops call me names for doing that? Maybe. But – here’s the kicker would they file the report as a car theft? Hell yes they would. Without hesitation or argument.

      If they caught the person that stole the car, and the defendant told the court “But your honor, it was unlocked, windows down, on the wrong side of town.” Would the judge and jury say “Gosh, maybe it was a gift then.” Hell no they wouldn’t.

  2. Is there something we can do about it? A petition?

  3. Sparlita says:

    This is disgusting. The fact that it was tried in a civil… CIVIL… court just shows how patriarchal our justice system is. The level of protection afforded to male assaulters in our societies is outrageous. On a similar note, thought I would share this article from a march held last weekend in Toronto. The march demanded a change in ways for the police who are often guilty of rape-blaming. The name comes from the comment made by a Toronto police officer that got the movement going:

    • Elsie Nisonen says:

      I participate in SLUTWalk Toronto and it was awesome, inspiring and full of young women and men, and old feminists andd was just a great event. It has gone viral with New Zealand, Hartford, Boston, London, Vancouver, and more joining in with satellite walks. Worth reading about. Seek out

  4. What is so hard to understand about "You must be sober (and conscious!!) to consent to sex"???

  5. I’m sorry – but when a girl is found practically passed out in her own vomit with bleeding genitals, what else can it be than rape? Who would ask to be “gang banged” so hard that their genitals bleed? There’s a difference between people that like “rough sex” and that.

  6. Shannon Humphreys says:

    What is wrong with the people on that jury? I just can't even begin to understand where people's heads are at. How is this NOT rape?!

  7. I wonder how these men (rapists AND men in court) would feel if the same excuses blaming the victim were flipped onto them. Say they were at a party where some gay guys were present. Everyone is drinking and mingling… and the gay guys rape a straight guy who was "dressed hott" and wasted. I'm pretty sure they wouldn't be off the hook so easy. Yet a woman who is raped is blamed for dressing a certain way and drinking! UGH!!!!

  8. This happens more than we know. I have worked in sexual violence prevention for 15 years and still don't understand how we constantly discuss the victim behaviors. What is it in our communities that creates some sort of social acceptance to "gang rape"? Furthermore, when you have 10 guys participating in this horrific crime, how is it that not one of them speaks out or interrupts these behaviors? Justice…. CRIMINAL justice system says it all!

  9. Renee Chandler says:

    Well said Stephanie….. Another thought. So those that get DUI driving are held accountable or wreck hurting others are held accountable. These poor fellas get drunk and gang rape a young lady and whaaaat they should not be held accountable…. America's typical thinking. This is similar to my experience only perp is constituents of local officials, never went to court.

  10. The fact that anyone can dispute this completely obvious case of rape is beyond me. She was BLEEDING and UNCONSCIOUS. Who gives a damn what she was doing before she entered that bedroom; once sexual acts were occurring without her consent, she was being raped. Who could possibly believe that while she’s lying there bleeding and vomiting that she was aware enough to give consent? And who has sex with someone who’s who’s in that state anyway? Rapists, that’s who.

  11. Wow. This is so sad and scary. A.Y. Siu is right: the teen was unwise and probably troubled. But here's the thing about 17-year-old girls: they don't realize what their bodies say to men, for men's bodies don't say the same things to them. Girls wouldn't even think of jumping a drunk man until his genitals bleed. The attention a 17-year-old gets is so powerful…she just doesn't fully realize what this can lead to. Just know I WILL be showing this to my 16-year-old daughter tonight!

    • Pennywhite says:

      Your sixteen year old daughter is vulnerable no matter what her body "says" to a man. In fact, if your daughter had a disability, and was therefore considered a less desirable object by men, she would be even more vulnerable to sexual violence.
      It's not the body, it's the vulnerability that "says" to men: I can get away with violating this sub-human being.
      Teach your daughter to exude strength and self-respect, and you might reduce her vulnerability to assault. But there is no guarantee.

    • We live in a society where we tell women to not get raped instead of telling men not to rape.

      Thanks for perpetuating that, responsible mom.

  12. I have to admit that I cannot make a clear agreement rather it is rape or not? After, first hearing about the case on the news and the way which the story was presented, I had come to a conclusion that the young lady was indeed raped. But after reading the article and doing some investigation on the case I am truly hung. There are strong points which can have me to believe she was raped like: how she was bleeding, too intoxicated as men after men came in the room. One thing is for certain she was clearly taken advantage of! But the defense, argued the plaintiff came to the party with alcohol, wearing provocative clothing, and gave a lap dance while grabbing the young mans genitals. Its clearly that the plaintiff was looking to have a “good time.”

    • "the plaintiff came to the party with alcohol, wearing provocative clothing, and gave a lap dance while grabbing the young mans genitals"

      Do you honestly think that is consent to sex with multiple men? If you do, that's beyond creepy…and I hope the women in your life are aware of that opinion.

      Let me put it another way, as someone else has below – if you went to a party dressed nicely, maybe took off your shirt to show off some muscle or something, drank, and danced provocatively, would you be okay waking up and realizing that multiple men had had anal sex with you? If not, you really should rethink this comment.

    • turquoise says:

      rape is not "looking to have a 'good time'"

      • What else is one suppose to do at a party anyway? Look for a bad time? A so-so time? If a girl can't tie one on and let her hair down at a party without expecting to be gang raped, I guess dudes should be left to their little sausagefests.

    • Mikaila says:

      “A good time”?? Even if she went there with the intent of having sex with someone that has no bearing on what actually happened.
      Wanting to have sex and being raped are completely different things.

  13. Also someone had stated that she had just been “raped” several weeks back at the same house then why would she return. It seem as if the plaintiff was fond of one these baseball players and had intentions of hooking up (sexually) with him that night. After, looking at the facts I believe that coessential sex was given to the first young male whom was in the room. I believe that after having sexual intercourse other males came into the room knowing that the plaintiff was highly intoxicated and judgment was impaired. That is when I believe the rapes begin. I believe that in the heat of the moment this young let her guard down and taken advantage of. After, the story made national headlines she felt embarrassed and humiliated and sought out for money.

    • A$$….read better it was a different girl 6 weeks earlier not this girl had NEVER been there before……….learn to READ! Oh and the prior RAPE was SETUP same way same guys but not admissabl in court!!!

  14. It's a shame that we're not live in sweden
    Sex with drunk woman classed as rape:

    • snowisfun says:

      But it is a crime in the U.S. as well. This case aside, for a case to be rape, the woman or man has to be drunk that they don't comprehend their actions.

  15. I would consider any sex with an unconscious person rape. What I find interesting is that when the roles are reversed it's not considered rape. Women who take advantage of drunk/passed out men are never talked about and the guy is considered "lucky". Tthe laws are unbalanced, they recently had a woman teacher(very common now) statutory rape a student of hers, she got a $300 fine and probation, had this been a male teacher-female student he would have gotten 10 years mandatory minimum. Also the false rape laws are another issue to be looked at. Anonymity should be given to the accused until it's proven in court. Just the accusation alone is enough to ruin a main regardless of guilt. The false accuser from the Duke LaCrosse got no jail sentence for lying but she is now finally serving time after trying to kill her boyfriend..twice.

  16. So I guess with rape it's guilty until proven innocent?

    • Wow, where do you get your news coverage? Facts from RAINN:

      "If a rape is reported, there is a 50.8% chance of arrest. If an arrest is made, there is an 80% chance of prosecution. If there's a prosecution, there's a 58% chance of conviction. If there is a felony conviction, there is a 69% chance the convict will spend time in jail. So even in the 39% of attacks that are reported to the police, there is only a 16.3% chance the rapist will end up in prison. Factoring in unreported rapes, about 6% of rapists will ever spend a day in jail."

      Also, I feel compelled to call attention to Georgia state representative Bobby Franklin, who has proposed changing the rhetoric around survivors– namely, that anyone accusing someone of rape is to be legally known as an "accuser." How many other crimes are framed in that mindset? If you file charges against someone for robbing your how, are you the victim or the accuser?

      • I've actually read all the sources that this article cites and not one of them offers up such a black and white picture that is presented here. Don't believe everything you read on the internet. The evidence was inconclusive.

        • The evidence that they washed away by their own statements to police they clean up the next morning…entire scene before police ever step foot in the room almost 24 hours after the RAPE, not to mention statement by one defendant he txt all the guys phone records showed this but not admissable, and called everyone to dump the photos and video off their phones so not to get caught…caught doing what if she asked for it??? cause the photos and video showed exactly what really happen and her state at that time was semi unconious, and 2 guys holding her down!!!!

    • "So I guess with rape it's guilty until proven innocent?"

      If you're the victim it is.

  17. From one of your own sources:

    "Medical personnel testified that they did not note any traces of vomit on the teen."

    • Oh, no vomit. Then she must have asked for it. Obviously that is your sick point.

      • The defense argued that this was a straw man (straw woman?) because the tools used do not detect vomit. The soccer girls also said they wiped the vomit off her face. I know I wouldn't leave it there if I were helping her and driving her to the hospital.

      • People do have gangbangs. If there was no vomit, it calls into question that the soccer girls' testimony wasn't exactly credible. Read the sources, this article doesn't exactly promote a fair argument.

        • You didn't understand what I meant, probably because I screwed up and said "defense" when I meant plaintiff. The tools used don't detect vomit, so saying the tools didn't pick it up means nothing. Here's a quote from the San Jose Mercury News:

          "Spector told the jury of six men and six women that defense attorneys Jeff Nevin and Bruce Funk tried to trick them Wednesday in closing arguments by challenging irrelevant evidence, leaving out key evidence and setting up and refuting "straw man" arguments that misrepresent the young woman's position.

          "Take the debate over whether the teen vomited, for instance, Spector said. The defense has made much of the fact that the Sexual Assault Response Team nurse at Santa Clara Valley Medical Center didn't find any vomit on her. Spector pointed out that vomit doesn't show up under the special light the nurse used and that the teen's mother and the soccer girls testified they wiped off the vomit."

        • alisvolat says:

          Yes people do have gangbangs, consentual people with other consentual people, usually with limits set before the act takes place. Unconscious, drunk, underage and rescued by other women~highly unlikely. This was a male dominance ritual meant to humiliate and dehumanize.

        • As her mother and I testified under oathe my son and I requested a wash clothe to clean the vomit from her face neck ear and hair with a police officer present at that time………now what anything more to say????

          • I know there's a small chance that you could be a troll pretending, but I just want you to know how sorry I am that you and people you know and love are involved in this situation. I don't have the proper words, but I know it must hurt to be in your position, reading comments like jaaro's. I know this might seem overly forward, but ::hug::. Life gets better after a while, and you realize that people who want to believe the worst do so because it is safer for them that way, and it in no way changes the truth. It allows them to be comfortable with and exonerates them from the atrocities they allow in their midsts. However it is decided in man's court, it does not change what really happened in God's world. It doesn't matter what jaaro thinks, or what I think, or what that judge and jury thought. Prayers and love to you and to the victim, from one survivor to another.

  18. The American Mindset concerning Rape: "It isn't Rape if you can't say No". Disgusting. Everyone who says that this isn't rape should go make a tear in their penis one time. Then tell me you'd let a group of people do that for fun for hours. People who are bigger than you, stronger than you, and who don't care how they leave you when they're finished, because it feels good to them. And now imagine, everyone telling you that "tsk tsk! You were too sexy! How DARE you comply with society's ideal of young men, walking around in something that is advertised in stores! You showed too much leg and therefore were ASKING for those people to shred your penis!" So it is actually YOUR fault that you've been raised to believe that you are supposed to be sexy, and YOUR fault that you were never stopped when you danced that way in high school, and YOUR fault that you drank the way you've been told college students do, and its completely YOUR fault that the person you CHOSE to have sexual relations with while you were still cogent invited their friends to use you when you clearly were not well. Yup. You TOTALLY asked to have your penis shredded off. Not rape at all. Nothing wrong with it. Remember, you ASKED for it the moment you thought about the image I presented you with a minute ago. You WANTED it.

  19. Well, thank god that those women were brave enough to get involved and stop what was going on. A lot of girls sometimes fall into complacency or, even worse, blame the victim for being promiscuous. At least they acted bravely in this situation.

  20. Katy Wolfe Brandes says:

    She was passed out, for crying out loud! You can dare say she wasn't flirting like a 'ho (as they called her) with all of those jokers. And so what if she was? That doesn't given consent to rape the girl as she lay passed out! It's disgusting and makes me sick to my stomach to think about it.

  21. I'm with you Sarah Ann. It doesn't matter what the victim was wearing or doing prior to the attack, a VIOLENT sexual attack. Bleeding and unconscious. Despicable. And rape. There is NO consent when one is incapacitated, in any manner. Rape means to take without permission. This is the most vile form of taking. We have got to stop blaming the victims and change our language. It doesn't matter that the little girl was drunk or high, someone else saw this state of consciousness as an ADVANTAGE, a sexual advantage. She couldn't say no, or get away. What sort of society have we become when we blame girls for what the male, often adult male, assailants do?

  22. constance kosuda says:

    the DA would be sining a different tune if it were his/her own spouse / daughter / s on, et als –

    but then again the outrage in part would be based upon a perceived violation of his/her own "property rights."

    go figure – a slut can still be raped / a drunk can still be raped / a prostitute can be raped / a wife can be raped –

    let's get real, folks.

    • I'm sure the DA would be "sining a different tune" if his spouse or daughters had participated in a gangbang.

  23. Blaming the victim accomplishes nothing. My quesiton is: What about the men involved? If someone came up to me and groped me, I would find it revolting and shove that person away from me. What kind of brainwashing is being done on the MEN to make them think, "Oh, goodie, this is a good time for a gang bang"????? For calling the girl a slut, what about the MAN WHORES? Those are worse, because they are walking sexual assaults waiting to happen.

  24. William Links says:

    there is no doubt about it. she was raped period.

  25. Who are the parents that are creating these Male Monsters? When a woman is in a vulnerable situation, a man's first thought should be, how can I help. Not, here's an opportunity to use and abuse. Parents need to wake up and teach their sons that being a real man is NOT synonymous with using, abusing, or taking advantage of others.

  26. I’m late to the game but it’s interesting how the movie Hangover II made fun of the rape of one of the male characters by a transgender. The transgender took advantage of the character being drunk and deceiving him by pretending to be a woman. leaving out the deception(which that alone is enough) the transgender did the same thing many men have done(drunk rape) but yet it’s a joke…double standard

  27. snowisfun says:

    This case was reviewed not just by the Santa Clarita prosecutor’s office but also by the California AG & they didn’t think the proof showed beyond a reasonable doubt. I don’t make conclusoins by press reports. The boys say that the girl wilfully had sex & seemed lucid-they did the acts she agreed to & the acts she said no to, they didn’t do while the girl says that she was drunk passed out & raped. Only the girl & the boys know what happened-the others are witnesses after the fact. I’m not here to say that the sex was wilful or that a rape happened. What I will say is that posters such as GP should admit that they don’t care if a rape did or didn’t happen but are mainly intersted in convicting just as the Duke case.

  28. Of course its rape if a girl is passed out. Who would want to have sex with a girl who is passed out anyway? Any guy who does is kind of sad.

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