This week’s Switched at Birth had one of our favorite characters, Bay, attempting to make sense of a situation that, unfortunately, occurs all too often in real life. And just like real life, Bay’s predicament is one that isn’t black and white, but instead, requires the navigation of a massive gray area loaded with a whole lot of “what if?” scenarios.
In the episode, Bay wakes up after a rager of a party, seemingly hungover and unable to remember much of what took place the night before. Oh, and she is naked, and Tank is lying in bed next to her. While Bay’s memory of the previous night’s events are hazy, one thing she definitely doesn’t remember is having sex with Tank, leaving her feeling overwhelmingly confused about how they ended up in bed together and whether it was something in which she willingly participated.
In an effort to help un-muddle what happened, as well as get a better grasp on her feelings about the situation, Bay seeks counsel from Regina under the guise of “asking for a friend.” Regina’s response? She feels sorry for the girl because she was raped.
“If she said yes, but she said it when she was that wasted, the guy shouldn’t have had sex with her. Period,” Regina explains. And while I wholeheartedly agree with Regina on that point, I’m not sure rape is as clearcut a conclusion to come to.
While Bay says she disagrees with Regina about her “friend” being raped, she clearly doesn’t seem so sure. But she also doesn’t seem so sure she wasn’t raped. And this is where Bay’s thoughts and feelings on the matter really begin to echo my own thoughts and feelings. She has so many questions, and the lack of concrete answers to any of them makes this far less the black-and-white rape scenario Regina professes it to be.
Bay doesn’t know if she said yes. She also doesn’t know if she said no. She’s unsure of how her being drunk played into the whole thing: Was she into it but she can’t remember that because she was drunk at the time or was she not at all into it and Tank took advantage of her anyway? He says Bay kissed him, that she was into it and that he never would have had sex with her if she had said no. But Bay thinks he kissed her, and she put a stop to it. Whose memory of the event is the correct one and what does that mean for a definitive judgment of rape?
Do I think the fact that Tank had sex with Bay when she was clearly too drunk to make a sound decision about it suggests he is a guy with questionable morals who is in grave need of some coaching on what classifies as consent for decent, respectful people? Yes, I certainly do. But is it likely that, legally, the lines are as clear? No, it isn’t.
The dichotomy of these two perspectives raises some serious questions about what constitutes rape, questions for which we, unfortunately, don’t have black-and-white answers. How often are rape cases dismissed on account of the victim’s perceived endorsement of sexual relations due to their intoxicated state, therefore apparently rendering them wholly or partly to blame for what took place?
How often have women not expressly given consent while they were drunk, but chosen not to pursue the matter further because they felt the fact they were drunk waters down their status as a victim? How many women, as a product of rape culture, feel purely because they didn’t say no that it was perfectly OK for a man to have sex with them?
I’m no legal expert, but it seems that the law fails women more than it protects them where matters of sexual consent are concerned. While the fact Bay was so drunk most certainly indicates Tank took advantage of her, whether or not he raped her is nowhere near as simple. If Bay’s case were tried in a court of law, would a jury find Tank guilty of rape beyond a reasonable doubt? Probably not. And without more clear-cut legal guidelines on what constitutes consent, neither can we.
While the legality of Tank having sex with Bay when she was too drunk to be of sound decision-making capacity might be a gray area, this episode did bring back into the spotlight a lesson that really needs to be hammered home among both women and men: Just because someone you would like to have sex with hasn’t said no, be they male or female, it doesn’t mean they’ve said yes. And if you can’t in good conscience say they are of sound decision-making capacity, then you should most certainly keep your hands to yourself.