Katie Baker’s Buzzfeed article from August 7th showcased Dr. Kim Fromme, a clinical psychologist at UT Austin. Fromme has become a sought-after defense expert on alcohol consumption and its relationship to consent in sexual assault cases. This also makes her a flashpoint in an ongoing culture war. Sometimes, this is inevitable, and even desirable. Things like DNA analysis and cross-racial identification studies have made crucial differences in criminal cases, and usually they were initiated by outsiders unafraid to challenge norms for the sake of justice.
But Fromme’s views- at least on the physical phenomenon of “blackout”- aren’t controversial to begin with. More importantly, though, the relevance of her expertise to the reality of sexual assault and how it should be responded to is grossly over-stated.
Fromme’s willingness to testify about blackouts is not an emerging, maverick stance. Blackouts are commonly understood, particularly by toxicologists, the hard-science experts who actually study the physiological effects of toxins on the body. They’re also understood by well-informed prosecutors who handle alcohol-facilitated sexual assault cases. Yes, blackouts can interrupt memory formation, and they occur most often with rapid consumption of alcohol over a short period of time. Yes, women seem more susceptible than men, in general. Yes, a person in a blackout state might appear lucid and make decisions that appear to be informed, but not remember those decisions later. This is established science, period.
Without a doubt, this science does sometimes create a problem for a prosecutor seeking to prove that a predatory person sexually touched or penetrated a victim too intoxicated to give meaningful consent. There are situations where a person consents to sex and then doesn’t remember doing so. So it follows that, albeit very rarely, the person may believe she or he was sexually assaulted, and report the contact as rape. There isn’t a “silver bullet” answer to a claim that the alleged victim consented during a blackout and honestly doesn’t remember it. And frankly, there shouldn’t be. If the defense can establish that a blackout caused unremembered consent, then so be it. Whether the defense should or will succeed is a complicated trial question; there are aspects of the actual, physical phenomenon of blackout that can be understood and argued. The claim of “she [or he] just doesn’t remember consenting” can often be refuted depending on the circumstances and evidence.
But what’s far more important is the hard reality that the vast majority of women and men who regain consciousness after any sexual encounter do not assume, let alone assert, they were raped to begin with.
This is the most troubling aspect of Fromme’s mini-celebrity in the context of sexual assault. Fromme herself is problematic in that she appears to be yet another “expert” who (at least in part) blames alcohol consumption and “risky behavior” for rape instead of rapists themselves. She shouldn’t be demonized (at all), and certainly not for believing that binge drinking can increase the risk of sexual assault. Without a doubt, predators use alcohol to destabilize and disempower victims. Alcohol as a weapon needs to be reckoned with. Still, controlling alcohol use is not the answer to addressing predatory behavior, which is behind sexual assault.
But even worse is assuming that any use of alcohol by anyone in a sexual situation either 1) negates consent altogether or 2) gives rise to claims of rape in any more than a tiny percentage of cases. Drunk people have and will continue to have sex, largely because alcohol lowers inhibitions and allows them to act on impulse and desire. This might be unhealthy or immoral depending one’s point of view, but it’s not criminal.
But again- almost no one is claiming it is.
In fact, the opposite continues to be true: The great majority of women and men who are clearly sexually assaulted- in any context- blame themselves and tell no one, least of all law enforcement. This is especially true where drinking is concerned, since voluntary alcohol consumption fuels guilt and self-blame on the part of the victim (as an aside, this is exactly what Fromme’s “risky behavior” focus drives home). So the idea that blackouts are creating a flood of mistaken victims, willing to cry rape at the slightest fuzzy memory, thereby regularly threatening the freedom of the wrongly accused, is utter nonsense.
Blackouts are a fact, and a rare but occasional issue in sexual assault cases. Mistaken cries of rape- however imagined by men’s rights groups or media sources- are rarer still.