Mutual Rape: Unraveling a Dangerous Defense Tactic in Title IX Cases


Most #TitleIX perpetrators (after speaking with a defense attorney) turn around to claim rape because they were drinking too – don’t be fooled, this is a #DARVO tactic meant to intimidate victims against reporting and to increase their legal costs for doing so

♬ original sound – LauraLDunnJD

In recent years, Title IX cases on college campuses have sparked debates about consent, intoxication, and accountability. One dangerous tactic defense attorneys may suggest their clients—who have been accused of raping someone incapacitated by alcohol—should use is turning around to claim they were also raped because they were drinking as well. This narrative is not only flawed but may expose them to an abuse of process or retaliation claim.  

Such false claims for defense purposes undermine the experiences of sexual assault victims and perpetuate a culture of college rape with impunity. This defense strategy is part of DARVO (Deny, Attack, Reverse Victim and Offender), which aims to flip victim and offender while also having the benefit of intimidating victims against reporting incidents. It also increases their legal burdens during Title IX proceedings while seeking to obscure the truth.

One of the most insidious aspects of this tactic, wherein offenders claim that their mutual intoxication means it is a mutual rape, is that it’s an impossible scientific concept. The idea that two individuals can simultaneously rape each other fails to recognize that sexual activities require someone to initiate, and that person is the one to be scrutinized. Colleges that indulge such retaliatory cross-claims trivialize the seriousness of rape while failing to understand that while alcohol can limit someone’s ability to consent, it does not limit an offender’s responsibility for seeking sexual contact with someone too impaired to provide consent as a legal matter. 

In reality, what often occurs in cases involving alcohol is that one party consumes alcohol to the point of incapacitation while the other remains capable of making conscious decisions—that person initiates sexual activity to exploit the vulnerability of the incapacitated party. It is critical to consider this differential power dynamic when determining culpability. When one individual is incapacitated, they are often unable to initiate sexual activity; therefore, any sexual encounter initiated by another person is non-consensual and potentially also criminal pursuant to applicable state laws. 

When there is a claim of mutual rape, the focus is not really on whether both parties were intoxicated but rather on who had the capacity to initiate and control the sexual encounter for purposes of determining responsibility. 

By shifting the narrative away from mutual intoxication and towards a clear understanding of the capacity to consent, we can dismantle the deceptive tactics employed by sexual perpetrators and unscrupulous defense attorneys encouraging them to engage in an abuse of process. It is imperative to recognize that intoxication does not absolve individuals of accountability for their actions, particularly in cases of sexual assault and rape, where the consequences for victims are profound and long-lasting.

If you or someone you know has been the victim of sexual violence and are seeking legal services, contact us for a confidential consultation. 

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