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Rape apologist or researcher? Professor says sex in a blackout isn't always rape

Kim Fromme discusses the difference between drunk sex and sexual assault.
kim fromme, brock turner, steubenville rape case, sexual assault, consent
Professor Kim Fromme says consent isn't always black and white when people are drunk. Photo: University of Texas

If you consent to having sex, but in the morning you don’t remember giving consent, is that rape?

Clinical researcher and psychologist Kim Fromme says maybe not.

Consent, Fromme told Buzzfeed News in a recent interview, is all about permission, and she says drunk people can be perfectly capable of making those decisions. What it boils down to is understanding the difference between blacking out and passing out, Fromme said.

A passed-out person’s brain essentially shuts down. They’re not capable of giving consent. The gray area comes when a person is blacked out – meaning they have consumed so much alcohol that their brain is no longer capable of converting short-term memories into long-term ones. Fromme said people in this state are still fully functional – they just won’t remember what they do.

Fromme likened it to the decision to drink and drive while blacked out – if a person drove drunk, no judge would let them off the hook just because they couldn’t remember, but she said the legal system allows people to allege rape if they don’t remember consenting.

"Boy, is that interesting,” Fromme said to Buzzfeed. “You could not say, 'I was so drunk, I couldn't make the decision to drive.’ They’d go, ‘Lock her up!’ But with sex, you can.”

So how does Fromme know people who are blacked out drunk are capable of making thoughtful decisions? She studies them. Fromme and her team of graduate students ply subjects with vodka and then run tests on their decision-making abilities.

It’s a position that contradicts a lot of the rhetoric on college campuses and in society about rape. Nearly half of all sexual assaults involve alcohol, and until recently, women who were drunk when they were raped rarely, if ever, came forward.

Over the last decade or so, a major culture shift, ushered in part by the Obama administration, has helped more and more women report their rapes to police.

"If a young woman is drunk, SHE CANNOT CONSENT," former Vice President Joe Biden, who spearheaded the bystander-intervention campaign “It’s On Us,” recently told Teen Vogue. "She cannot consent, and it's rape. It's rape. It's rape. It's rape."

Fromme’s ideas about sex and consent, as you can imagine, are unpopular, but they’re ideas she’s taken the stand to defend.

Fromme is a sought-after defense expert in rape cases where lawyers are trying to prove the difference between drunk sex and sexual assault. Fromme’s testified in more than a few of such cases that have garnered national and even international notoriety. She charges $10,000 per trial.

She testified on behalf of the defendants in the 2012 Steubenville, Ohio, rape case in which two high school football players were charged – and later convicted – of raping a drunk 16-year-old girl. They got caught after video of the teens talking about the assault went viral on YouTube.

She also provided expert testimony in defense of Brock Turner, the Stanford freshman and champion swimmer who penetrated an unconscious 22-year-old woman with his fingers. He was also convicted, though his six-month sentence was widely condemned as far too lenient.

But Fromme admitted to Buzzfeed that she felt Turner had been “railroaded” – a baseless claim – and blamed the victim’s boyfriend for propelling the case forward.

“I thought it would be awful, frankly, for a kid that age to have his life ruined,” Fromme said, “which it has been.”

Fromme said she’s lost friends and been shunned by colleagues for her views.

Another professor at the University of Texas tweeted Fromme is a “rape apologist” and said she is “embarrassed” to be her colleague.