When Does Sex on MDMA Count as Rape?

While a date rape drug is commonly defined as "a drug (such as GHB or ketamine) placed secretly usually in the drink or food of a potential victim to induce a state (such as confusion, physical weakness, or unconsciousness) that makes the victim vulnerable to sexual assault and especially rape," music festival attendees often take drugs voluntarily. And while the drugs most often labeled as date rape drugs are Rohypnol, GHB, and ketamine, festival-goers' drug of choice—or at least the one they talk about most on Instagram (other than alcohol)—is MDMA.

MDMA, known in its pill form as ecstasy and in its powder form as molly, has occasionally appeared in the news or pop culture as a date rape drug in recent years. CeeLo Green pleaded no contest to slipping ecstasy into someone's drink in 2014, claiming she consensually took the drug and had sex with him, and received three years of probation and 360 hours of community service. In March of this year, a Los Angeles man faced felony poisoning charges for attempting to "roofie" his coworker by slipping MDMA in her drink.

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James Giordano, PhD, professor of neurology and biochemistry at Georgetown University Medical Center, told Broadly that if someone's looking to sexually assault someone else using a drug, they wouldn't likely choose MDMA, since it doesn't typically render you unconscious or helpless. And though its most well-known emotional effect is euphoria, it can also make you more reactive to unpleasant situations, so you may make a scene if you feel unsafe. Psychopharmacologist Julie Holland, MD, author of Ecstasy: The Complete Guide, agrees. "There is no memory loss for the time that you are intoxicated with MDMA," she told Broadly. "Also, it is not sedating or soporific in any way."

But when asked if it would be considered sexual assault if someone intentionally targeted someone on MDMA—given that the drug's effects can include increased sexual arousal and sexual risk-taking—she answered, "Probably." Similarly, Ian Hindmarch, PhD, Emeritus Professor of Human Psychopharmacology at the University of Surrey, told Broadly that MDMA "would not have any real use in drug-assisted sexual assault, as it would not stupefy the intended victim." But then, he added, "While it has no use as a 'Mickey Finn'—i.e., knockout drops—MDMA might make victims feel loved up, and so more liable to 'consent' to sex."

It's this quote-unquote "consent" that complicates efforts to define a date rape drug. While some drugs leave people unresponsive and unable to say "no," MDMA can make people say "yes" to encounters they wouldn't otherwise agree to—or even initiate them.

"I remember being on a date once where the girl I was with took MDMA for the first time without telling me," Daniel Saynt, who runs the club NSFW and teaches workshops on consent and responsible drug use, told Broadly. "Her dancing got wilder and she kept pulling me in for kisses… she started dancing up against other people around us, pulling in another girl and grabbing at her in the same way she grabbed me, forcing a kiss." Though she was initiating these activities, Saynt decided she wasn't capable of consenting—without quotation marks—so he pulled her off the dance floor and sat with her until she came down.

But not everyone treats people on MDMA this way. In fact, some may actively prey on users, Fiona Vera-Gray, PhD, a Leverhulme Early Career Fellow at Durham Law School and Rape Crisis Helpline Operations Coordinator, told Broadly. She explained that people hoping to get away with assault take advantage of rape myths, and many rape myths—like the one that someone behaving in an affectionate manner is "asking for" it—flourish in environments like festivals and clubs where there may be a lot of MDMA use.

"This means targeting women who are less likely to speak out about what these men have done—because they feel at fault somehow or because they will be judged," she explains. "Or women who won't be believed if they do speak out—for example, because parts of their memory are hazy, or because they acted in ways that society doesn't think someone who's been raped should act, like going to see a favorite band afterwards or having photos taken where you're having a good time. So MDMA and music festivals can be used as resources to play on all the rape myths that make it hard for survivors to speak and easy for perpetrators to get away with rape."

Tracey Wise, founder of Safe Gigs for Women, also believes that drugs play a role in the epidemic of sexual assaults at festivals and that "someone taking advantage of someone [already] on MDMA is just as serious [as someone giving it to them] because that person knows the other person cannot honestly consent." Vera-Gray says that while she can't speak to specifics, there have been reports of women calling hotlines like Rape Crisis and saying they were assaulted both after taking MDMA themselves and after someone else had given it to them.

In fact, a 2005 study from the Department of Justice found that while only 4.2 percent of 144 people who reported sexual assault had been drugged, 35.4 percent were high on some drug when they were assaulted. So although the stereotypical date rape drug may be slipped into someone's drink, taking advantage of someone who's already high on drugs could be considered its own date rape tactic.

Sexual activity with someone on any drug that interferes with their capacity to consent—even if they appear to give consent—can be legally deemed assault, criminal defense lawyer Yosha Gunasekera told Broadly. That's true whether the assailant gave someone the drug or took advantage of someone already on it, though in the latter case, the prosecution would have to prove the defendant knew the victim was high.

The prosecution in drug-facilitated sexual assault cases typically must also prove the drug "stupefied" the victim, according to a paper in the Journal of Psychoactive Drugs. Criminal defense lawyer Todd A. Spodek told Broadly that he helped a man accused of sexually assaulting a woman who was on MDMA escape charges on these grounds. "If you dance all night at a club and hang out with friends and drink and get into a car and you're awake and you talk and have conversations before you go to bed, the evidence would lead that it is possible to consent," he said.

However, some advocates disagree. Hindmarch once argued as an expert witness in a case involving alleged MDMA-assisted assault that it did indeed "stupefy" the victim, defining "stupefaction" as "a state in which behavior is no longer under conscious control." He told Broadly that since MDMA is an entactogen—a drug that increases empathy—it could compromise one's capacity to consent. The judge's decision ended up siding with the defense's definition of "stupefaction," however, as "to produce a stupor."

Giordano also believes MDMA interferes with one's ability to consent. Since it floods your brain with serotonin, it can make you relaxed and trusting enough to go along with whatever others propose, he explains: "Loss of inhibition can lead to increased impressionability." Combine that with becoming desperate for connection, craving for touch, and growing fond of people you wouldn't otherwise like, and you may say yes to encounters you'd normally turn down. Giordano puts it this way: Most reputable tattoo parlors won't service someone who's high, and drugs affect sexual decision-making just as much.

Chardonnay Madkins, Project Manager for End Rape on Campus, told Broadly that MDMA's ability to invoke people-pleasing tendencies would undermine any seeming consent given on it. Educational psychologist and sex educator Kathryn Stamoulis, PhD, LMHC, agrees, explaining that though MDMA may leave your ability to fight back intact, it may compromise your desire to fight back. "Its purpose is to create a feeling of bonding, euphoria, relaxation, etc., so a person is not able to accurately judge a situation's risk of threat," she told Broadly. "The flight or flight instinct is therefore impaired."

Still, many people take MDMA, have sex, and wake up the next day without feeling violated. "Sex with someone who is too impaired to consent is always assault, but I would say that it depends on the person, the dose, and their remaining cognitive ability. It would be case by case," Safer Gigs for Women's Mel Kelly told Broadly. "What would constitute consent is that the person has clear knowledge of what they are going to do and are OK with it. The people there need to make the call." Even this definition leaves some ambiguities, though, like what constitutes "clear knowledge" and how to tell if someone's "OK with it." Since this metric is entirely subjective and could be open to mistaken or intentionally incorrect interpretation, one barometer Vera-Grey suggests using is whether the person only wants to have sex with you because they're high. If that's unclear, it's best not to do anything.

"There are different levels of being high, and when practiced responsibly and with a trusted partner, altered states of mind can lead to amazing sexual experiences," says Saynt. However, his workshops advocate reserving these experiences for partners you know well, planning them while sober, and checking in continuously during the experience as the drug's effects may heighten or shift. He also advocates asking a potential partner's friends if they appear to be behaving normally and avoiding anyone who is slurring words, acting abnormally touchy-feely, or having trouble holding a conversation.

But given the varied and unpredictable ways MDMA can affect people, consent from someone on it is never 100 percent certain, says Giordano. "The presence of a substance that's going to interfere with an individual's emotional state and ability to make a rational decision is going to impede their ability to give competent consent," he explains. "Their boundaries of 'yes, I want this' or 'I don't' would be modified."

The answer to the question of whether MDMA can be a date rape drug depends how one defines "date rape drug." To acknowledge the complex range of drug-facilitated sexual assaults, we need a broader definition than a dictionary's. Madkins instead defines a date rape drug as one "used to facilitate rape, regardless whether or not the survivor took it voluntarily." She adds, "If the drug is used as a means to affect someone's ability to consent to sex, then this is rape and the drug is used to rape someone."