Malcolm Gladwell has two big themes in his book Talking to Strangers. The first theme is that we are very bad at telling whether someone is lying or not. Many of us think we are good at it, but we are not, not even professionals whose job it is to tell when someone is lying. Scarily, some people just naturally look like they are lying even when they aren’t, while others naturally look like they are telling the truth when they are really lying. Unfortunately, but also possibly flattering myself, I suspect that I personally am in the category of people who look like they are lying even when they are telling the truth. (For example, I am not great at eye contact.) Those who know me well probably realize this and correct for it. But in a police interrogation room or a court of law being judged by strangers, I might get in trouble.

Malcolm Gladwell’s second theme is one dear to social psychologists: the effect of situations on behavior relative to the effect of character on behavior is much bigger than people assume.

Let me turn to a particular example. In discussing date rape, most of the discussion focuses on men being bad. But there is a dramatically important situational element to most date rapes: alcohol intoxication—and sometimes intoxication with other drugs.

I want to make a simple proposal that I think could make a real dent in date rape. Just as we have laws making it statutory rape to have sex or sexual activities with anyone under a certain age, make it statutory rape to have sex or sexual activities with anyone who is too intoxicated to legally drive, at least as the default.

Here is what I mean by “at least as a default.” Have an opt-in procedure on a secure state government website to increase the blood alcohol level at which sex with you isn’t statutory rape either for sex or sexual activities with specific individuals (say, one’s boyfriend or girlfriend) or to increase that cutoff blood alcohol level in general for any partner. (There is no reason not to give you several options for the cutoff blood alcohol level.)

All the current laws about consent would continue to apply. It is simply what level of blood alcohol legally constitutes automatic, crystal-clear no-consent that would change if one opted in to a different level on the state government website.

There is no need to make it public what choice you have made on the state government website. As long as you are over 18, you shouldn’t have to worry about your parents knowing. Even with your choices password-protected, you will be able to demonstrate what choice you have made to a potential sexual partner if they want reassurance that you are “legal” to have sex or sexual activities with.

In addition to helping discourage date rape enabled by alcohol, I think this would have the beneficial side effect of making it easier in general for people who don’t want sex to say no even in the face of some degree of pressure to have sex, and so help a bit in avoiding cases of genuine, but reluctant consent.

I want to emphasize that the opt-in capability means that anyone who doesn’t want any level of alcohol intoxication short of the blackout level to get in the way of any sexual encounter has that choice. Defaults matter a lot, but if you don’t like the default, you have the choice of having things as they are now for yourself. Of course, if you enjoy taking sexual advantage of others because they are intoxicated, too bad. This policy change would prevent you from doing some of the harm you want to do.

Postscript: If state governments don’t take up this idea, a college or university could do something quite similar on its own, with the one change that the penalty for having sex with someone who was inebriated without them having opted in (if that was the only infraction) would only have a penalty of expulsion.

Note that it is probably necessary to have students and employees of the college or university to give consent for blood alcohol tests as a condition of studying or being employed by the college or university.

It is possible this policy might discourage some men from attending that college or university. But the college or university is probably better off without those particular men. And, as long as the opt-in policy is made clear, it should make women more eager to attend that college or university.

Postpostscript: You might worry that a sexual aggressor could threaten to countercharge the one assaulted with statutory rape. But if someone had sex reluctantly with an aggressor who was over the blood alcohol cutoff, that reluctance would be a defence against the charge of statutory rape. I think juries would normally believe that someone who was, in fact, reluctant was telling the truth about their reluctance. So I don’t think there is a big problem there, in practice.