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Yesterday, I assembled a Justify Your Date Rape playlist of five popular songs which deal with forcing someone you know to have sex with you. Most of the commenters on the post were arguing over the definition of “date rape”—-and whether Jamie Foxx’s joint, “Blame It (On the Alcohol)” qualifies (read the lyrics to the song here).

Mdesus wrote:

I don’t believe that the Foxx song describes date rape. In fact I don’t think it even comes close. . . . This girl gets drunk, and is flirting with these guys. She is talking about doing something she doesn’t normally do (sex). She’s not getting “date raped” she’s making a poor decision while she’s drunk. California may have some retarded law that basically says if the girl (and only the girl never the guy) is drunk then it’s automatically date rape. That does not make it true.

Isaac Beekman wrote:

Date rape exists, in part, because of a perceived blurry line between consent, and assault. That line ain’t really so blurry until people go around blurring it; for instance by asserting that something is ‘rapey’, meaning rape-like.

jenna wrote:

do you need the opinion of the person featured in something like foxx’s opus to qualify it as rape? so, do you need an inbalance of power to be experienced by BOTH the raper and the victim? the narration is sort of his perception of the situation, which overall has this sort of ‘i will conquer, you are powerless’ kind of feel. so that’s rapey on one part of the equation. but like does the girl also have to experience a sense of degradation or crappiness? . . . basically, whose experience of the situation matters more when you are establishing whether something is rape? the perpetrator’s or the victims? does it have to be both?

A friend of mine put it another way: “Can’t a woman be coy anymore?”

So, what’s rape, what’s “rapey,” and what’s just “coy”? Let’s start with the legal stuff.

Definitions vary be jurisdiction, but In the District of Columbia, you can commit First Degree Sexual Abuse by having sex with someone after using physical force, verbally threatening them, drugging them, or otherwise “rendering them unconscious”—-which could include intentionally feeding them so many drinks that they pass out.

You can commit Second Degree Sexual Abuse by having sex with someone after just waiting until they are unconscious (even if you did not “render” them passed out), or having sex with them while they are incapable of knowing what’s going on, incapable of “declining participation” in the act, or incapable of “communicating unwillingness” to participate in the act. In other words, if they’re really crunk.

Misdemeanor Sexual Abuse, the least serious offense in D.C., can still carry up to 180 days in prison and a fine of $1,000. You can commit this misdemeanor by having sex with someone without their express permission.

So, let’s take Foxx’s song as an example. Did any sexual abuse occur in the song? No—-this joint ends before they leave the club. That’s why I describe Foxx’s song as “rapey”—-in my opinion, it encourages and even glamorizes tactics of date rapists. In other words, it lays out a scenario that could likely lead to a date rape. What tactics does Foxx use that could lead to jail time?

a) Not taking no for an answer: willfully denying the woman’s expressed verbal “unwillingness” to have sex (“she said she usually don’t / but i know that she front”)

b) Attempting to alter her state of consciousness in order to have sex with her (“I ain’t saying what you wanna do / but you know we probly gon’ do” . . . “ooh see, she spilled some drink on me / and now I’m knowing she tipsy”)

If Foxx and this woman did later have sex, he could be in trouble if a judge, jury, and an alcohol toxicology expert witness confirmed that she either a) was passed out, b) wasn’t passed out but didn’t know what was going on, c) wasn’t passed out but couldn’t communicate that she didn’t want to have sex, or simply d) did not expressly consent to the act. It doesn’t help that Foxx clearly announced his intentions prior to the act in order to coerce this woman into bed with alcohol (remember, if you attempt to commit any of the above offenses, you can be liable as well). Oh, and if T. Pain (and his vocoder) get involved? any of the acts, when “aided or abetted by one or more accomplices,” can carry a sentence 1.5 times harsher than the usual maximum jail time.

If Foxx and this woman do have sex at a time when she’s awake and mentally capable of consent, and she does consent to all the acts, and she’s of age, then Foxx is probably off the hook, legally, as a “date rapist.” Still, any attempt to have sex with someone by encouraging that person to “make a mistake” by fucking you is disgusting and rapey (this goes for men and women).

But what about the woman in the song? Of course, no holla back joint has dropped from Foxx’s fictional honey, so we can’t tell what she’s really thinking. How can we tell if she’s just “flirting” and acting “coy”?

Again, as far as the legal system is concerned, it doesn’t really matter if she is into Jamie Foxx, if she really, really, wants to have sex with him, and if she’s only denying his advances in order to play “hard to get.” All that matters is whether she’s legally able to consent to the act when the act occurs (a point that, we can assume, comes after the song ends).

More problematic, however, is the fact that we don’t hear from this woman—-and that her actual inclination to fuck Jamie Foxx doesn’t seem to matter to Jamie Foxx (or to, you know, the recording industry in general). Instead, Foxx places this woman in an outdated model of female consent that allows him to fuck her in the easiest way possible, (before the weekend is over, and he skips town)—-whether she wants it or not

The model Foxx choses is a familiar one: Woman says no, man coerces her with the aid of alcohol until she says yes. Implicit in the Foxx Model is the idea that women are never allowed to fully, enthusiastically, and SOBERLY consent to sex. If Jamie Foxx approached a woman, asked her to have sex, and she consented on her own terms, that would make her “easy.” And so, Foxx insists that the woman find outside force to “blame” for her promiscuity (in this case, henny, vodka, and tron). That way, she never has to admit that she desires to experience any sexual pleasure (and she doesn’t get to blame Foxx, either).

This is why the song is so problematic: under the Foxx model, the opinion of the woman he chooses to target is unimportant. If the woman doesn’t want to have sex with him, he assumes that all she needs is more alcohol to overcome her “coyness.” If she does want to have sex with him, he still assumes she needs more alcohol—-to cover for her “sluttiness.” Either way, Foxx’s interest is in devaluing the woman’s right to choose—-even if the choice is to fuck Jamie Foxx.