Page 96 - Malcolm Gladwell - Talking to Strangers

with Red Bull. Bree, who had been drinking earlier in the day, matched her round for round.
Footage from closed-circuit cameras showed the two of them walking back to her apartment, arm in
arm, around one in the morning. They had sex. Bree thought it was consensual. M said it wasn’t. He
was convicted of rape and sentenced to five years in prison—only to have the verdict thrown out on
appeal. If you have read any other accounts of these kinds of cases, the details will be depressingly
familiar: pain, regret, misunderstanding, and anger.
Here is Bree, describing his side of the story.
I was hoping to avoid sleeping on the floor and thought that maybe I could share her bed, which
in hindsight seems such a stupid thing to do.
I wasn’t looking for sex, just a mattress and some human company. She woke up and I lay
down next to her and eventually we started hugging, and then kissing.
It was a bit unexpected, but nice. We were indulging in foreplay for about thirty minutes and it
sounded like she was enjoying it.
And then, from the court’s decision:
He insisted that M appeared to welcome his advances, which progressed from stroking of a
comforting nature to sexual touching. She said and did nothing to stop him. He told the jury that
one needed to be sure about consent which is why he stroked her for so long. The complainant
could not gainsay that this foreplay lasted for some time. Eventually he put the top of his fingers
inside the waistband of her pyjama trousers, which would have given her an opportunity to
discourage him. She did not. She seemed particularly responsive when he put his hand inside her
pyjama trousers. After sexual touching, he motioned for her to remove her pyjama trousers. He
pulled them down slightly, then she removed them altogether.
Bree thought he could infer M’s inner state from her behavior. He assumed she was transparent.
She wasn’t. Here, from the court’s filings, is how M was actually feeling:
She had no idea how long intercourse lasted. When it ended she was still facing the wall. She did
not know whether the appellant had in fact used a condom or not, nor whether he ejaculated or
not. Afterwards he asked if she wanted him to stay. She said “no.” In her mind she thought “get
out of my room,” although she did not actually say it. She didn’t know “what to say or think,
whether he would turn and beat me. I remember him leaving, the door shutting.” She got up and
locked the door and then returned to lie on her bed curled up in a ball, but she could not
remember for how long.
At 5 a.m., M called her best friend, in tears. Bree, meanwhile, was still so oblivious to her inner
state that he knocked on M’s door a few hours later and asked M if she wanted to go and get fish
and chips for lunch.
After several months in prison, Bree was freed when an appeals court concluded that it was
impossible to figure out what the two of them did or did not consent to in M’s bedroom that night.
“Both were adults,” the judge wrote:

Neither acted unlawfully in drinking to excess. They were both free to choose how much to
drink, and with whom. Both were free, if they wished, to have intercourse with each other. There
is nothing abnormal, surprising, or even unusual about men and women having consensual
intercourse when one, or the other, or both have voluntarily consumed a great deal of alcohol.…
The practical reality is that there are some areas of human behaviour which are inapt for detailed
legislative structures. 3
You may or may not agree with that final ruling. But it is hard to disagree with the judge’s
fundamental complaint—that adding alcohol to the process of understanding another’s intentions
makes a hard problem downright impossible. Alcohol is a drug that reshapes the drinker according
to the contours of his immediate environment. In the case of the Camba, that reshaping of
personality and behavior was benign. Their immediate environment was carefully and deliberately
constructed: they wanted to use alcohol to create a temporary—and, in their minds, better—version
of themselves. But when young people today drink to excess, they aren’t doing so in a ritualized,
predictable environment carefully constructed to create a better version of themselves. They’re
doing so in the hypersexualized chaos of fraternity parties and bars.