Gray rape or grey rape is sex for which consent is unclear. The term was popularized by Laura Sessions Stepp in her 2007 Cosmopolitan article "A New Kind of Date Rape", which says gray rape is "somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what". The term has been criticized. Lisa Jervis, founder of Bitch magazine, argued that gray rape and date rape "are the same thing", and that the popularization of gray rape constituted a backlash against women's sexual empowerment and risked rolling back the gains women had made in having rape taken seriously. Former Manhattan chief of sex crimes Linda Fairstein states that "in the criminal justice system there’s no such thing as gray rape". ConsentEd, a Canadian nonprofit sexual education foundation, dismisses the idea of gray rape, stating that in rape, perpetrators know exactly what they are doing; rape is not an accident.
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Terminology
The concept was mentioned in Katie Roiphe's 1994 book The Morning After: Sex, Fear and Feminism on Campus where she writes, "there is a gray area in which one person’s rape may be another’s bad night." The term gray rape was used to describe the 1996 Brown University rape allegation involving students Adam Lack and Sara Klein. According to Lack he had consensual sex with Klein. Klein was apparently unaware the two had sex until days later after Lack asked about the experience. She said she did not remember the incident due to her consumption of alcohol, and 5 weeks later, filed charges. Lack said she not only gave consent, but was the one initiating and that he was unaware she was intoxicated. The charges were subsequently dropped, but Lack received academic discipline as a result.
After Laura Sessions Stepp's Cosmopolitan article, "A New Kind of Date Rape", gray rape definition came to include regrettable sexual experiences and decisions made under the influence of drugs and alcohol.
Controversy
In 2014, Washington and Lee University expelled a student identified only as John Doe for what was described as "gray rape" after he allegedly raped a woman identified as Jane Doe. According to the claim, Jane met John at a party in February 2014 where the two had sex; she did not ask him to stop at the time, but later regretted it, reportedly after seeing him kiss another woman. In the summer of 2014 while working at a women’s clinic that helps sexual assault victims, Jane spoke with staff and later reassessed the encounter as rape. Within 21 days John was expelled from Washington and Lee. John Doe later sued the school. In 2015, Washington and Lee filed to dismiss the lawsuit, but Judge Norman K. Moon denied the motion to dismiss allowing John Doe to continue seeking damages from his expulsion believing that John had been the wrongly accused of sexual misconduct. Washington and Lee University ended up settling out of court with the student.
Some reject the idea of gray rape, saying that it promotes the myth that rape can be an accident. They say that consent is consent, and there is no gray area between consent and lack of consent.