This is the paper that I based a panel talk on at the ASA Consumers and Consumption Mini-Conference 2018 in August.
The debate over the perennial holiday song “Baby, It’s Cold Outside” heated up this year, rather than just withering away in the face of sheer insignificance, as I had hoped. In fact, the only thing possibly more annoying than nixing a perfectly good song is the ensuing whining about political correctness that it provokes. I’ll grant that it’s hypocritical to single out “Baby, It’s Cold Outside” for criticism. Anybody who enjoys literally any genre of popular music with lyrics should probably start with a bunch of other stuff if they are intent on being censorious.
My book, Drink Spiking and Predatory Drugging: A Modern History (2016) only deals with the newfound discomfort with this song in passing. I haven’t written about it extensively; I’ve only commented to my friends I found the whole campaign against the song wrong-headed. Since then, there’s been some very good writing about the topic. Mainly: listen more closely.
I liked Cammila Collar’s take on this at Medium, which rightly recommends listening closely enough to realize that the female singer is looking for a way to stay, not to leave, and that she’s joking around when she asks, “what’s in this drink?” Collar and other writers on the topic, some of whom I mention in my book, also plead for greater attention to the historical context of the song, where ideas about shame and propriety greatly thwarted women’s desires and leisure activities. In the ensuing years, not surprisingly, role-reversing renditions have emerged, keeping the original lyrics intact. (If you want a little soundtrack for this blog post, I recommend the Lady Gaga and Joseph Gordon-Levitt’s 2013 version.)
Let’s also understand the drugs-and-alcohol-related context of the joke the duet singers share. It’s true, as Collar and others said, that “what’s in this drink?” was a common joke at the time when people wanted to account for their own bolder-than-usual, sillier-than-usual, or more-at-ease-than-usual behavior in all kinds of social settings, not just in potentially romantic or sexual ones. Throughout the song, she’s also mocking and rejecting an expected gender role: appointed schoolmarm of the evening, disciplinarian of the wily male. The song also came about during a new era of pharmaceuticals, and with it a new post-Prohibition sense of ease with alcohol, too — and sometimes a blithe attitude about their combination. And thus, jokes.
In my book, I wrote:
After Prohibition, the liquor industry sought to re-domesticate the image of alcohol as a wholesome accompaniment to a social evening at home. While drinking slowly became more acceptable for middle-class women, the consumption gap [where men drank considerably more than women in the US] of pre-Prohibition returned. In advertising, women were often shown serving alcohol rather than consuming it. In this milder way, women once again seen as limiters and keepers in alcohol-serving environments – not people who were at risk, except under exceptional circumstances, of overindulging themselves, but not the grim-faced disapprovers of the Temperance era, either. A permanent shift had taken place in norms around drinking and women’s propriety. There was, by and large, nothing now deviant about it.[See Lori Rotskoff’s history, Love on the Rocks: Men, Women and Alcohol in Post-World War II America]
Beginning in 2012 and reprised every holiday season since, a sort of silly claim has emerged that the 1944 Frank Loesser holiday tune,“Baby, It’s Cold Outside” is actually “rapey” in part because the dialogue contained the line, “what’s in this drink?” In its own context, this actually makes no sense. First, it’s clearly not a song about someone genuinely worried about being drugged, but simply someone teasing her companion and humoring her own increasing desire to stay with him longer. Her quarrels (and ultimately mocking tone) are with the shaming voices that might disapprove. What it does reveal is both a relaxed attitude about her freedom to go or to stay, and about alcohol itself, and the mild disinhibition that everyone seeks from it. The drink (plus the “half a drink more” that she asks for) seems to make her go through the motions of propriety, in an increasingly joking way, of the what-will-people-think variety without diverting her from what she really wants.
It is difficult, however, for modern ears to pick this up unless you have an understanding of both transitioning gender roles at the time and perhaps a maybe too relaxed attitude about alcohol, drugs, and mixing the two at the time for both sexes. Barbiturates and chloral hydrate still appeared in a number of pharmaceutical products, and at the time there was still generally too little concern about their mixture….While I’ve suggested that this may have a lot to do with lessening fear of alcohol itself and its rekindled association with sociability rather than social pathology, it also has to do with the techno-utopian view of tranquilizers coming onto the market. [pages 89-91]
The mass marketing of tranquilizers in the post-war period (as this song gained popularity) created a halo around these products, and it was not yet common for doctors to warn patients sternly about mixing these drugs with alcohol.
Enthusiasm and ensuing carelessness about meprobamate [Miltown] is difficult to overstate …. Comedian Milton Berle, in the 1950s, once joked with his audiences that he was planning to change his name to Miltown Berle. There were even Miltown cocktails variations on the Bloody Mary and Martini that required a dose of the stuff. No worries! [pages 91-92][Also: See Andrea Tone’s book, The Age of Anxiety]
From a caution-bound contemporary standpoint, such practices (and jokes about them) seem reckless rather than “so very nice.” But that wasn’t how people saw it back then. We don’t have to see drinking, drugs, or even flirting exactly the same way to understand it. Kudos to the stations that have kept it in rotation.
“Alcohol is the number-one date rape drug”: a phrase that tries to be all things to all people. It doesn’t clarify much.
More about this in chapter 8 of my book Drink Spiking & Predatory Drugging: A Modern History.
The E-book is only 15 $/€/£ today (11/23) through CyberMonday,
A lot of people are wondering about the origins of the weird, one-size-fits-too-little term “date rape.” I got a good sense of where it came from when I was researching my book, Drink Spiking and Predatory Drugging: A Modern History, published by Palgrave Macmillan in 2016.
While it is a confusing and maybe not so useful term, (and one that has been mangled beyond all recognition by the very misleading phrase “date rape drugs,”) the original coiners of the term, in the mid-1980s, meant well. They were trying to focus more attention on the ordinary-life occurrence of rape, and away from the image that many people had from media images of stranger rapes. It was at this time that we learned how common acquaintance rapes were on college campuses.
Below are some excerpts from my book (pages 138-140) for a little context:
The popularity of the term “date rape” no doubt stemmed from the need to shift the imagined problem away from the stranger lurking in the shadows, and toward the much more common acquaintance. In many non-stranger cases, the assailant is someone who the victim was socializing with (date, friend, classmate, fellow partygoer) when the assault took place, either by force, threat, or lack of ability to consent. [….]
The term “date rape” emerged alongside a highly noted study by Mary Koss and her colleagues, whose results were published in both Ms. Magazine and peer-reviewed journals. It was a large, multi-campus survey that found that 15.4% of college women had experienced an assault that met the legal definition of rape since age 14; another 12.4% had experienced an attempt at this type of assault (attempts are also felonies). Forty-two percent had never disclosed the assault to anyone. Eight percent of college men admitted to engaging in acts that met the legal definition of rape or sexual assault.
Immediately, some confusion emerged among both advocates and critics: some erroneously thought that this meant that one in four college women had been assaulted while in college. Others did not realize that respondents had described incidents to the interviewers, and then the interviewers categorized the incident as an assault, using legal definitions.
Some critics seemed to object to researchers making these decisions, but also seemed to object to women themselves calling something “rape.” Subsequent surveys found similar numbers from year to year, so it is unlikely that the methodology was faulty. [Alexandra] Neame’s review (2004) of this period of backlash points out that as sound social science, the research has not been challenged.
Most of the backlash, however, was a reaction to the impact of the research in the broader culture. [….] In the long run, though, the activism and research of the 1990s did succeed in changing perceptions of the typical rape.
It appears that at a certain point, though, the gains associated with a more thorough understanding of the commonality of sexual assault among non-strangers peaked and then stalled. Perhaps too many assumed that once we all knew that this was the more common circumstance than the man jumping out of the bushes, then we would see greater consequences for sexual assailants. But instead, since the 1990s, it appears that neither reporting rates (the likelihood that a victim will report an assault to the police) nor conviction rates have systematically improved. In some ways, perhaps caution was warranted in this matter. Given what we already knew about the circumstances under which women were more likely to report sexual assault to the police (by a stranger, if there were other physical injuries, if the assailant used a weapon), the likelihood that non-stranger rape reporting would increase drastically was low to begin with. Still, the almost complete lack of improvement in reporting is troubling.
The social consequences of reporting have remained high, and now go beyond stigma, minimizing, and disbelief. The digital age poses new kinds of threats to assault victims who come forward – harassment, threats, and doxing from strangers. It’s not surprising that reporting of rape and sexual assault remain low. But the secrecy fostered by a low-reporting situation also leads to all kinds of second-guessing and misinformation.
References and Links
M.P. Koss, C.A. Gidycz, N. Wisniewski, “The scope of rape: Incidence and prevalence of sexual aggression and victimization in a national sample of higher education students,” Journal of Consulting and Clinical Psychology, 55, 1987, 162–170.
Alexandra Neame, “Revisiting America’s ‘date rape’ controversy,” Family Matters, 68, Australian Institute of Family Studies, Winter 2004.
Lynn Langton and Sofi Sinozich, Rape and Sexual Assault Among College-Age Females, 1995–2013. Bureau of Justice Statistics, 2014. http://bit.ly/2PMNW3C
Caroline Heldman and Baillee Brown, “A Brief History of Sexual Violence Activism in the U.S.” Ms. Magazine Blog, August 8, 2014, http://msmagazine.com/blog/2014/08/08/a-brief-history-of-sexual-violence-activism-in-the-u-s/
In my previous post about the role of drug testimony in the Cosby trial, I noted that the skepticism on both sides about the effects of diphenhydramine (commonly sold in North America as Benadryl) was unwarranted and was contributing to a kind of unhelpful illicit drug mystique that hovers around allegations of predatory drugging. Given the storied length of time between the incident (2004) and the first criminal trial (2017), it should have been obvious from the beginning that there would probably never be any certainty about what, exactly, Bill Cosby handed Andrea Constand that evening to help her relax.
In the end, as it should have been, the path to conviction was simpler: the deposition and Cosby’s own words about how he deployed methaqualone (Quaaludes) during his interactions with women. Even if his intended inference was that “back then” a great deal of drug-taking was consensual, and therefore the pills flowed like candy, this does in no way erase the consent and capacity issue. In fact, he said in the deposition that he did not take the drugs himself, essentially implying that he sought tactical advantage through chemicals. This theme permeated the criminal complaint filed in 2015.
I thought once Judge O’Neill permitted the deposition material in the current trial, the Cosby legal team might persist with what I think of – and I have seen this before in serial drugging assault cases – as the “demimonde defense.” The idea is that the accused and the alleged victims were involved in the same subculture that sanctioned recreational drug use, excess drinking and multiple sexual encounters. Therefore, it is often implied – and this has to be just shadow-sketched, not fully spelled out – that everyone involved should have known what to expect, that norms and boundaries are present but not conventional, and that the accused was a peer participant rather than a criminal predator or exploiter. The short hand in this case has been something like: well, it was the 70s and these were Hollywood people, or aspired to be.
But it’s not the 70s, and Andrea Constand was a child then. Even if one were to countenance such arguments to counter the testimony of prosecution witnesses brought in to build an argument that Cosby had engaged in a distinct pattern of criminal behavior dating back decades, Constand was certainly no part of such a demimonde. The defense veered away from it, and instead tried to raise some doubt about when the alleged incident occurred, which also had the potential advantage of throwing the statute of limitations into question.
Indeed, by day 8 of the trial, defense attorney Becky James affirmed the irrelevance of Quaaludes use in the 1970s, as it was clear that it cast a shadow over the specifics of the drug issue in the current matter of Constand’s testimony, and wasn’t helping Cosby at all. Constand reported feelings of weakness, disorientation, and a sense of paralysis after taking the tablets. Cosby says he gave her Benadryl. Obviously, Cosby intended this to be exculpating. Unfortunately, many people, including the press, seem to also think of diphenhydramine as a cuddly little antihistamine that couldn’t possibly produce the same effects as a now off-market legendary tranquilizer like Quaalude. Even the defense’s expert, Dr. Harry Milman, insisted that Benadryl wouldn’t have those effects, and that government regulators would have dealt with the drug more harshly if it did. It seems that Dr. Milman was drawing upon a rather a quick and apparently not very successful Google search.
But Cosby need not have given Constand methaqualone, or any specific CNS depressant, to get the desired incapacitated effect. Enough Benadryl would in fact do that – as would any other number of anti-anxiety or insomnia medications – if given in heavy doses. And the prosecution witness, Dr. Timothy P. Rohrig, explained this on the stand. Jon Hurdle of the New York Times reported that
Under direct questioning from M. Stewart Ryan, an assistant district attorney, Dr. Rohrig said Ms. Constand’s testimony that she became disoriented and lost the use of her arms and legs matched the effects of diphenhydramine, the active ingredient in Benadryl.
Dr. Rohrig said the effects include sleepiness, blurry vision and dry mouth. “Benadryl will do that, plus a hangover effect,” he said. “All the symptoms and the timing are consistent with the ingestion of diphenhydramine.”
Dr. Rohrig said diphenhydramine has been used in numerous cases of “drug-facilitated sexual assault.” He said the effects of Benadryl would take 15-30 minutes to begin, and would reach their peak in one to two hours. The drug has been produced in round, blue pills, like the ones Ms. Constand said she took, but has also been available in oblong or oval shapes, Dr. Rohrig said.
Rohrig’s job was to explain how this drug can be (and has been) used in incapacitating assaults, but it should also remind us that in a world of pharma-ubiquity, no cleverness or illicit market prowess is needed engage in this kind of predation. Broken trust and opportunism come first. Any number of readily available substances – let’s not forget alcohol — can assist, but they can’t plan, plot, assault or exploit on their own.
Cosby was found guilty; his lawyers say they expect to appeal the conviction. — May 2018
Get my book, Drink Spiking and Predatory Drugging: A Modern History for only $9.99 as an e-book (all formats) on May 17, 2018 as part of Palgrave’s Daily Deal.
Bill Cosby is currently on trial for an alleged sexual assault on Andrea Constand in his home near Philadelphia in 2004. Last year, a previous court case ended in mistrial. In the interim, of course, the world learned of many more allegations against the entertainer over the decades.
At various times, Bill Cosby has claimed to have given women cold or allergy medicine. This was, I’m sure, intended to sound more benign than the Quaaludes (methaqualone) that he admitted purchasing, during a deposition in the civil case Constand brought against him in 2005. He said then that he got Quaaludes to give to women he wanted to have sex with, and also admitted that he didn’t take that drug himself, as it made him sleepy.
But the “cold medicine” pivot doesn’t point to a lack of predatory intent. A little primer about the potentially big effects of diphenhydramine is order.
We commonly know diphenhydramine as an over-the-counter remedy, in the form of a little pink antihistamine; the most well-known brand name of this drug is Benadryl. It can make people drowsy, and in fact many people informally use it on themselves (or even their pets) to coax sleep on an otherwise agitated situation. This is a relatively safe practice if no alcohol is involved, and the dose is kept low. But at doses above the recommended 25-50 mg level, there have been reports of blackouts, feelings of heavy limbs or paralysis, and disorientation. There are also methaqualone and diphenhydramine combination pills; some formulations of these are blue tablets. Higher doses of diphenhydramine alone have been made in blue tablets, as well.
Recently, concern has emerged about nightlife welcoming the “Benadryl cocktail.” For the record, this is an ill-advised mixture. People have been mixing heavier drugs, like tranquilizers, with alcohol for a long time; in the 1950s, the Miltown Martini was much in vogue. I can remember a particularly notorious dorm party at college that involved NyQuil and vodka. Most people’s interest in these concoctions is also voluntary, recreational, and for self-dosing; nonetheless, diphenhydramine can and has been used in a predatory way. Nearly any substance can be pressed into predatory service under the right circumstances. Playing armchair toxicologist, by simply guessing on the basis of a victim’s symptoms, is not wise. To use legalistic language even outside a court setting: you’re piling on additional burdens of proof that are unnecessary if you simply take a broader view of the total circumstances. The question really is: did someone suffer exploitation or assault, in part because they could not consent or resist?
The 2015 criminal complaint against Cosby takes diphenhydramine seriously – and it should. At a high enough dose, Benadryl absolutely could produce the symptoms that Constand described. She said that he gave her three blue pills represented to her as herbal supplements, after she mentioned feeling out of sorts. Quickly, heavy symptoms emerged – dizziness, disorientation, and difficulty moving and staying conscious. She says she was also aware of a great deal of sexual touching during this time but was unable to resist or move away.
The prosecution this time around has a refreshing approach to the drugs aspects of the case — refreshing for being circumspect. It’s an approach, I think, with the practical goal of withstanding limitations the court might have (and did previously) place upon evidence about Cosby’s alleged pattern of behavior over the decades. But the role of drugs in the complaint keeps its sights on the underlying offenses. It takes a notably different tack than previous drugging allegation cases in some state courts and before college disciplinary boards. In my 2016 book Drink Spiking and Predatory Drugging: A Modern History, I identified a common, but often perilous, temptation to make drugs that central issue in assault cases, rather than the assault itself.
The key thing here, for establishing the non-consensual nature of the encounter, is the fact of Constand’s incapacity. The specific charge related to Cosby’s drugging behavior relates to facilitation of sexual assault, that he knowingly offered drugs that would lead to the incapacity and thus could not then argue that the encounter was consensual.
In this way, Cosby’s disassembling is the issue, not whether or not Constand took narcotics, high-dose diphenhydramine, or “herbal” supplements from Cosby. She took something from him, as they both agree, and became disoriented, weak, and only sporadically conscious afterward. This criminal complaint keeps it simple, in other words: Constand was in no state to consent, and the defendant’s behavior with whatever he may have given her strongly suggests consciousness of guilt and intent.
Contrast this approach with the one used in prosecuting and confirming convictions against Jeffery Marsalis, another Philadelphia-area case where the defendant was accused of multiple serial rapes and druggings:
But in trying to establish the likelihood of drugging, the press and the courts seemed at times, disturbingly, to rest their accusations of assault on it. It was a successful gambit for them, but risky. And it once again deferred the question of what right women had to bodily integrity when voluntarily intoxicated, as many of the women also were. So much emphasis was placed on the drugs that Marsalis’ violence—his decision to rape and exploit—seemed like some mechanistically simple and inevitable outcome of his drugging scheme. For instance, the courts belabored how he could have obtained drugs through his nursing and emergency medical technician (EMT) work. But by the time of the Marsalis allegations, in the early 2000s, obtaining drugs for such a purpose was hardly difficult. Benzodiazepines were everywhere. GHB was a popular club drug. Diphenhydramine (which was brought up as a possibility) is available over the counter. Basically, anyone who wanted to drug anyone else would not find many obstacles of a chemical sort. There basically are no barriers to means, nor have there been for a very long time. [p193]
The prosecution made the same mistake when they prosecuted Marsalis for a similar case in Idaho, developing a deep expert witness roster based on a theory of GHB drugging. Toxicology evidence was negative, and was misrepresented by a detective initially, although that wasn’t the only evidence that suggested drugging. But the drugs preoccupation put the conviction in jeopardy during appeal, where Marsalis’ lawyers argued, convincingly to at least some of the appellate judges, who dissented from affirmation of conviction, that the prosecution had made a particular drug scenario the centerpiece of its case, misrepresented the evidence, and then tried to argue that it wasn’t central. Once again, however, the appellate court majority did decide that the central issue was the complainant’s lack of capacity to consent, not an intricate and well-documented road map of chemical predation. A close call, and an example of how a drug-centric shaping of a case, can jeopardize the centrality of assault upon an incapacitated person.
The Cosby complaint takes its unknowns in stride, rather than running from them, headlong into phantom evidence that then weighs down the accuser with absences. It remains to be seen whether this broader-view approach makes a difference.
In the book, Drink Spiking and Predatory Drugging: A Modern History, I make the argument that exaggeration of the date rape drugs threat (among students, particularly, but not limited to them) has a pernicious effect on voluntarily intoxicated victims of violence and exploitation.
Situations in which drugging explanations are insisted upon when both tests and circumstances suggest otherwise has the dual negative effect of sidelining claims about the sexual assault itself, and contributing to a basically melodramatic view of the problem. Left out in the cold, then, are all the more mundane experiences that most assaulted women recognize as their own. (p 248)
One of the things I spent some time mulling over was how to present the argument in such a way that didn’t fall into the “this problem is a distraction from that problem” trap. Distraction arguments, after all, can be lazy: take any two things happening at the same time and say that one is a distraction from the other. Obviously, surreptitious drink spiking followed by rape does happen, and I detail some of these in the book. But in the case of this drug scare, the relationship between the roofie obsession and the desire to escape any talk about voluntary alcohol consumption – for fear of victim blaming – is fairly stark and very direct, and I wasn’t the first, by far, to notice it:
… Amanda Hess sarcastically called out the “date rape drugs industrial complex” as fomenting fear about a relatively rare occurrence and trying to shift talk about rape back to the lurking stranger…. Hess noted the face-saving qualities of the formulation: “Now, society is ready to accept that a rape victim is still a rape victim if she goes out to a bar with her girlfriends and has a few drinks—as long as her intoxication is capped off with a surprise roofie.” It’s basically a form of victim-blaming that manages to look like victim sympathy at first. Many opinion leaders and policy makers are squeamish about asserting the simple right of intoxicated people (women in particular) to not be assaulted, no matter how they got that way. (p. 142-143)
Hess mentioned some research I’d done with Adam Burgess and Sarah E.H. Moore on the topic. But she formulated the problem so concisely that it advanced my thinking about the topic greatly when I went to write the whole book. And then I began to find evidence of this backhanded victim blame everywhere. Tennis star Serena Williams, opining in 2013 about the Steubenville rape case, infamously exemplified the attitude in a Rolling Stone interview:
“I’m not blaming the girl, but if you’re a 16-year-old and you’re drunk like that, your parents should teach you: Don’t take drinks from other people. She’s 16, why was she that drunk where she doesn’t remember? It could have been much worse. She’s lucky. I don’t know, maybe she wasn’t a virgin, but she shouldn’t have put herself in that position, unless they slipped her something, then that’s different.” (Williams, quoted in RS, 6.18.13)
Then that’s different: it’s “real rape.” The fear women have of blame for their own victimization is not irrational; it is grounded in the harsh judgment of intoxicated victims. Williams was roundly criticized for these remarks, and she did eventually walk them back. But this was just a celebrity version of a widespread but often unacknowledged attitude, that characterizes not only victim blamers but, more troublingly, people who claim to be victim defenders, including campus anti-rape activists, journalists, district attorneys, and legislators.
To expect a person who has been assaulted while drunk or high to take on the additional burden of pretending they were “plied” with drugs or alcohol as the only route to the legitimacy of their experience of violence is doubly burdensome. It denies the larger reality of drug and alcohol use across the world as a route to pleasure-seeking and sociability. It favors only the sober victim, the old-school innocent victim against whom all the rest are measured. (261)
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