In the Stanford case the accused was found having sex with someone who was totally passed out, which under the law means he was guilty of rape. If he started having sex with her while she was conscious, even if she had consented (which may or may not be true, depending on how drunk she was), once she passed out he was guilty of rape, because once she passed out she could not say “no”. Consent doesn’t just mean when you start having sex, consent means that you implicitly consent to having sex by not saying no, whether at the beginning , in the middle or 5 seconds before the other person finished. Once you cannot say no, that is the end of having sex, period, for the other person. So even if there were questions about whether she initially consented, Brock was guilty of non consensual sex once he continued to have sex with someone who was unconscious. It is a similar concept in S/M where the bottom has the right to say no and stop the action at any point (a safeword), in any kind of sex either person has to have the ability to say no at any point, if not, it is over the line.
With the Lind case it is a tough one. For example, she may have taken out and unrolled a condom because at that point she may have been able to consent, with alcohol your body processes it at the rate of your particular metabolism, so it is possible when they first started she could consent, but as the alcohol processed she became more and more out of it. The real question is that let’s say that is true, that the condom thing shows she was able to consent at the start, that doesn’t mean that the other person should necessarily be in the clear. In this case, it is very gray, because we don’t know subsequent to sex starting if she met the standard of being able to consent, and it raises questions that are difficult to answer. Someone unconscious is a no brainer, but at what level do we consider someone able to not consent? I am not much of a drinker, but there were a small handful of times when I got drunk enough that I don’t recall what happened after a certain point the night it happened…so what legally determines that consent, and that is the problem with this case, we don’t know how bad she was, and while I am a vigorous advocate for prosecuting cases like this, there is so much gray here that I think the school did the right thing, the law is such that if you can’t know with a certain level of certainty whether the law has been violated, then it goes with the accused. Brock didn’t have that, he was an arrogant Delta Bravo who went well beyond the legal standard (again, whether the girl consented earlier or not doesn’t matter, the ability to say no at any time is the key to consent, too, and she couldn’t do it). In this case, I don’t know if the girl could have said no, since I don’t have, for example, the blood alcohol level of the girl at the time, saying she was too drunk to stand up doesn’t mean, to me, that she cannot consent, or that she didn’t remember it the next day.
As far as the accused being drunk, that is meaningless, whether the guy as stone cold sober or drunk as a skunk, alcohol is not a defense for criminal activity,if you drink to the point where you can’t control yourself and commit a criminal act, you are a criminal, and the fact that you got drunk means you do live with the consequences of your actions, whereas if you drink and become the victim of a crime in part or largely because you were drinking, you still were the victim, pure and simple, and being drunk in no way, shape or form should ever be used as an excuse for committing a crime. The base case of that is the person who gets blotto and then drives and kills someone, one of the things about drunk driving is that people who are drunk think they are not drunk enough to have a problem, so in a sense the drinking made them commit the crime, made them not only incapable of safely driving a car, but also made them think they were able to…yet try that in court these days, and watch what happens (sadly, it was a defense that worked in the past “oh, the poor guy had a few too many drinks, he didn’t mean to kill anyone by driving”).
The fact that a victim themselves were drinking only is relevant in terms of the level of incapacitation they had and whether it stopped consent. The hard part with these is school are assuming that if someone files charges, that they are necessarily true, especially if the victim has been drinking, and I think there needs to be a legal standard evolved that says or tries to say where that line is. In rape without drugs, forced rape, one says the other says will come down to the credibility of the accused and supposed victim, with something like drinking and sex it often comes down to the same thing, but the credibility of the supposed victim often seems to be assumed to be more than the accused, and it shouldn’t be.
For those talking about the victims (usually young women) getting drunk and questioning their victimhood because of it, phrase that different way. In many of these cases, the accused has been drinking as well, so why are you talking only about the victim? After all, if the accused drank enough that it ‘made them go over the line’, why do you question the victim’s culpability because they were drinking and not the accused? More importantly, why do some of those I have heard discussing this (not on this board necessarily) use alcohol as a defense, both by saying the accused was a ‘good person’ who had too much to drink and the assumed victim was at fault for drinking too much and de facto ‘contributing to it’? What bothers me about that is it is in a sense justifying the actions of the accused by saying they were less culpable because they were drinking while also saying they were less culpable because the victim partially brought it on themselves because they had been drinking, which strikes me as the old ‘explaining away’ rape as being the victim somehow was responsible for it, whether they had been drinking, wearing the wrong outfit or shoes, makeup, where they were and so forth (testimony from a real rape case I read about at one point, referring to a woman who had been gang raped in a bad area “So Miss X, you were in [area Y], a single, young, attractive woman, an area you didn’t live in, wearing club wear that left little to the imagination, you mean to tell us that was all a coincidence you were there dressed like that?” with the implication she was ‘looking for action’…focusing on the victims actions, as ill thought out as they are, is ignoring that the accused either deliberately did what they did (they were cognizant of what they did, knew she was drunk), or is ignoring the very thing they accuse the victim of, that they got themselves blotto with binge drinking which after all, often leads to date rape on both ends, the accused and the victim.