Great point. I think the Occidental case is an example of this. Frankly, I am torn.
If you’re asking me what should happen (as opposed to what does happen) - I think the principle of “everyone is accountable for their actions, drunk or not” is still a good one. But punishing both people isn’t doing anyone any good. I think these are the cases that mediation is best for, so that both sides can fairly agree that they were both equally wrong and wronged. Maybe they should both get education/counseling/community service. Before DCL, colleges tried to do this. This is changing, and I think this is not for the best.
To determine if both parties were more or less equally culpable, I would try to establish that both parties were apparently willing (even if incapacitated) and that there was at least some active participation by both sides. I’d also want to make sure this was a first offense for both of them. If the scenario was imbalanced but not completely lopsided, I might put the “aggressor” on probation or something. Call me a sexist, but I personally would hold the male to a higher standard if I were king. I would also probably be more lenient with a freshman who just arrived on campus.
Another troubling situation is if one person is one molecule of alcohol over the limit of incapacitation and one person is a molecule below. I know what I’d do
Let’s suppose for now that this was a guy and a woman, to make the pronouns easier.
If the guy was sober, and the woman was drunk to incapacitation, then the guy was responsible for realizing she was incapacitated and couldn’t consent, and not having sex with her.
If the woman was sober, and the guy was drunk to incapacitation, then the woman was responsible for realizing the guy couldn’t consent, and not having sex with him.
These responsibilities do not change when both people are drunk. Drunk or sober, a person is responsible for what they do. She is responsible for having sex with a person who couldn’t consent, and he is responsible for having sex with a person who couldn’t consent. I say if both accuse, and both are determined to have been incapacitated, discipline both.
The line for determining incapacitation is difficult to draw, though. I’m inclined to say that a person who actively appeared to consent and who was voluntarily drunk did consent, which means both the man nor the woman in our scenario did consent, assuming that both of them clearly seemed to consent (like the Occidental case) . But jeez, do I really want to say that a person who was speaking incoherently, was vomiting and was staggering around could consent? That person sounds incapacitated to me.
Hunt - I think there is a valid reason why it’s ok to hold someone responsible for a sexual assault when they’re drunk even if we don’t hold someone responsible for giving consent while they’re drunk. It’s because the act of “giving consent” isn’t a crime, but the act of “having sex with someone who wasn’t consenting” is a crime.
Not in California, I’m glad to say. For Rape of Unconscious Person, the prosecution would have to prove merely that he had intercourse with her, that she was unconscious, and that he knew she was unconscious. Or, the prosecution could try for Rape of Intoxicated Person, in which case they would have to prove that he had intercourse with her (it’s on video), that she was incapable of resisting because of intoxication (hello, they were carrying her inert body around, it’s on video), and that he knew she was incapable of resisting OR a reasonable sober person would have known she was incapable of resisting (no reasonable sober person is going to see the accused carrying around an unconscious person and think she could have resisted).
“I say if both accuse, and both are determined to have been incapacitated, discipline both.”
CFang, I would be troubled by this. Drunk student 1 passes out in bed. Drunk student 2 sexually assaults drunk student 1. Both accuse the other. It seems manifestly unfair to discipline both.
Edit: Seeing your 12:35 p.m. post since I wrote the above. I guess you are drawing a distinction between very drunk, and incapacitated drunk.
MidwestDad, yes, I agree. I meant to say, but did not say, that if both students are incapacitated and both students actively seemed to consent at the time then both students are equally culpable.
He is responsible for having sex with someone who did not consent if he actively seemed to consent to and participate in the sex, but not if he was so incapacitated that he was unable to even seem to register consent. She is responsible for having sex with someone who did not consent if she actively seemed to consent to and participate in the sex, but not if she was so incapacitated that she was unable to even seem to consent. People are responsible for what they do, even when they are drunk.
Then they both need to put their big boy and big girl pants on and get on with life for one to go complaining about a situation like that to my ears sounds like kindergartners who can’t get along in the sandbox.
Here we have a videotape. I am not sure why passing around the videotape isn’t a big enough reason to expel.
Anyway, the guys punishment was expulsion…after they graduate.
dstark - In the JMU case you linked to, it looks like the guys took her top off and groped her. They also passed around a videotape. It doesn’t say they forced her to perform any sex act. Personally, I’d suspend them for a year (in addition to receiving education and mandatory counseling); maybe ban them from rejoining a frat (is this even possible?). Remember that this also costs them about $20K each in money for a lost semester (they shouldn’t be eligible for financial aid for the returning semester). I think that’s just - maybe I’d be a little harsher but I don’t think I’d expel. I agree that this “expulsion after graduation” stuff is BS.
al2simon, would your punishment take into account that they videotaped the event and passed it around? I see two offenses here: sexual assault (groping her and trying to remove her bikini bottom as she is protesting and trying to stop them), and sexual harassment (taking video of the event and passing it around). For a lot of women, the fact that the video was being widely shared would be worse than the initial incident.
Audrie Potts, a young girl who lived in my area, committed suicide after she learned that some guys had groped her at the party (sexual battery) and then distributed pictures widely. Accounts of the aftermath of the crime seem to indicate that the unbearable part, for her, was the humiliation of having all her classmates see the pictures and the concomitant cyberbullying rather than the initial incident.
But having sex with a person who does consent isn’t a crime. What we’re talking about here is this: how drunk do you have to be before you can no longer consent to sex?
I think the problem here is how to construct a meaningful test. I think most people would agree that a person who has had one beer can consent to sex, while a person who is unconscious can’t. In order to draw a line in between, would you prefer a subjective test or an objective one? A subjective test might be something like, “the person is so intoxicated as to no longer be able to make a rational decision about whether to engage in sexual activity.” An objective test might be a BAC level. Somewhat less objective might be whether the person had obviously slurred speech, was able to walk without assistance, etc. I think anybody can see the difficulties with any of these standards–you end up leaving it up to a jury to try to work it out. (Another reason I don’t think the preponderance of the evidence standard is appropriate for such cases.)
By the way, it seems to me that most people are assuming that a person who is drunk, or maybe even incapacitated, can retroactively consent to sex after the fact. Doesn’t that seem a bit odd?
And here’s a thought experiment: the accuser is heard saying to the accused during the evening, “Let’s get drunk and have sex later.” They get drunk and have sex. If she brings a complaint against him, how do you resolve it? Did she consent or not?
Let’s not get into the idea they only groped her. It may not specifically be rape, but it’s sexual assault. Should be intolerable.
And I hope this doesn’t take us back to some gal who “wanted” to be groped or led some guy on. Or who came to college with mental issues or whatever we loop to.
To me, the guys maybe losing tuition money is just a side detail. i don’t believe you meant it was punishment enough, right?
I agree having the video being widely shared would probably be the most scarring thing; having many people on campus see it. I just don’t know how to undo that. What is the criminal penalty? I think in the age of google we are still trying to figure out how to handle these issues.
Losing her financial aid? I didn’t see that in the article. Is JMU crazy? What were they thinking?
Well, if you elect me king here’s what I would do ----
The best solution that I can come up with for the girl is the following - JMU should let her attend school for free, taking whatever time off she needs to, until she graduates. She might want to transfer somewhere else where people don’t know her. I’d understand that. If I were JMU, I’d pull some strings to help her transfer and make sure she has money to complete her studies.
In addition to the penalty I outlined above, maybe JMU could “encourage” the local DA to press criminal charges. Filing criminal charges would get these guy’s names in google next to the word “sex offender”. Make sure the online campus newspaper has an easily linkable story with names and photos of the guys. It would follow them around for the rest of their lives. - comparable to what they did to this girl and would teach them a lesson.
Maybe the guys should fork over the money in exchange for the DA not pressing criminal charges.
Do I get your vote?
Corporate setting - absolutely agree with firing. Easy-peasy decision. Suspension for groping seems very just. But even with the videotape I don’t think I can get to an expulsion penalty without a sex act involved, but frankly I feel like cr*p about it.
Lookingforward - I agree that groping isn’t something to dismiss. But every crime has a punishment. Somebody breaks your arm - how much jail time is appropriate? Can’t go overboard in a fit of rage. Tuition money isn’t really the point, but I like the idea of costing them $20K each. JMU isn’t the criminal system; the menu of choices is limited with expulsion being the most severe punishment possible even for multiple homicide.
I don’t see any point in using that. The point of having the test is so that afterwards, when someone complains that they were incapacitated, we can determine whether they were. But we’re not going to know what a possible rape victim’s BAC level was. We might, however, have evidence about their functioning: they could or could not walk straight, they were or were not talking incoherently, they were or were not slurring their words, they were or were not vomiting, they were or were not able to follow a conversation.
With drunk driving, the BAC level is useful because when someone is stopped for drunk driving, they can be tested right then and there for BAC, so the jury will be able to know. But nobody’s testing for BAC during intercourse.
Why do you believe this? I don’t think anyone can retroactively consent. I don’t believe in retroactive consent.
I personally would have no problem with expelling the guys in the JMU case. I don’t think that’s inconsistent with anything I’ve said above. Anybody who thinks they can’t tell if there is consent or not when there’s a video of the woman saying it’s not OK is an idiot.
Indeed, I have no problem with expelling people for sharing nude pictures of other students without permission, as long as there’s a rule against it. Surely there’s no doubt that they did that.
I would say that sharing naked photos or videos of someone without their consent should be an expellable offense, if they didn’t consent to the pictures being taken or being shared, even if they consented to the activity being photographed/videoed. I say that because we have ample evidence that having one’s naked photos/videos shared is perceived as so horrible that people kill themselves over it.
