@“Cardinal Fang” my point is that the practical standard for incapacitation is subjective. I agree with you that this is not how several of the disciplinary policies are written, but you must concede that when we are talking about claims made months and even years after the event, there is no way to determine exactly how intoxicated someone was. I have no idea how someone proves a their level of intoxication several months after the fact, and have nowhere near the confidence that you do that each of the successful accusers were neigh on comatose when the event occurred. Nor am I aware of anything other than objective reports of how “out of it” the accusers were. I think this is why we hear about a “blackout state” where people allegedly show all outward signs of consenting but in fact lack the ability to do so. On the other hand, I believe there are cases where other people did not think the accuser was too drunk to consent, and yet the tribunals found for the accuser are you saying those cases don’t exist? Also, and as you know, this same subjective standard drives all of the reporting on how many “rapes” occur on campus. I have equal concerns with it in that context.
@dstark, technically yes, any party can seek summary judgment. Practically though summary judgment is a tool which says the person bearing the burden of proof has not adduced sufficient evidence to carry their burden, so it is rarely available to plaintiffs.
@Cardinal Fang I would label “tipsy” as .04 to point 08; “drunk” as .08 to point 15; “very drunk” would be .16 to approximately point 25 (B.R.A.D. defines this level as “sloppy drunk”); “incapacitated” would be roughly .25 or .3 and above.
I don’t know how drunk Oxy Jane Doe was. And while my definition of very drunk has shrunk in the decades since I was in college, I would be willing to define “very drunk” as between .1-.125, which is apparently the state where “Significant impairment of motor coordination and loss of good judgment. Speech may be slurred; balance, vision, reaction time and hearing will be impaired. Euphoria.” occurs. I believe that equates to roughly three beers for a 120 pound woman in approximately 40 minutes. I would assume that you would argue that “loss of good judgment” means that the person has at least arguably lost the ability to consent, right?
Incapacitated is .3? That is just short of comatose. 2.5, according to BRAD, and you are in John Bonham territory. Man, we have very different definitions of drunk.
Let’s clear up terminology. In what I’ve read about alcohol use and abuse, a “blackout” is a retrospective assessment. A person experiences alcoholic blackout when they were conscious during the event, but later can’t remember what happened. If you’ve ever had a colonoscopy or helped someone else who had one, it’s the same-- during the procedure, the person is conscious and talking, but afterwards, they can’t remember a thing. Another example is a amnesia after a head injury: someone can have a head injury, be conscious and talking to the paramedics, but later can’t remember the circumstances of their accident or what happened directly afterwards.
In all these states, your brain is not putting down memories. Later you can’t remember, because your brain didn’t form memories.
I’ve also read that whether the drinker is going to have blacked out is not very predictable from the amount they are drinking. The same amount of alcohol, and the same amount of apparent intoxication, can result in a blackout one time, and no blackout another time. Obviously in general more drinking will cause a greater chance of blackout, but there’s no certainty.
It would not make sense to require as a condition of consent that the person was not in what was going to be an alcoholic blackout, because it’s impossible at the time to know whether the person is going to remember the events the next day. We can’t look inside someone’s brain and see if they are forming memories.
Whatever the outward signs of incapacitation would be, they can’t be “alcoholic blackout,” because that can’t be detected at the time.
How about banning all student sex at the university? That will solve the problem. Then men don’t have to be so terrified of being falsely accused - abstinence is the answer. Why don’t they just adopt this course of action? Save it for marriage. End of problem.
Thanks for the explanation, although I could have done without the memory of a colonoscopy I think I get what you are saying though, I have had concussions during games when I later didn’t remember a thing other than a hazy recollection that I had played. I guess it is kind of the same thing.
I pulled the definition of blackout state from Amherst’s web page (planning a visit this week with Kid#2) it reads
Given what you have said about the condition, it would be almost impossible to know if someone was in a “blackout state”, right? And the only real option is not to have sex with anyone after they have had one or two drinks? Otherwise, I have no idea how the existence of a blackout state plays with the “reasonable man” standard of whether someone is objectively able to consent to sex.
I’m not aware of any case where the level for incapacitation is set that low. Certainly by the accounts of witnesses, Oxy Jane Doe was far drunker than that. As far as I’ve seen, the idea is not that the person has lost good judgement; they’ve pretty much lost all judgement.
Oxy Jane Doe was by all accounts “sloppy drunk.” She was vomiting and she needed help walking. She could not remember what happened the next day. So we’d have to put her close to or at .20 BAC.
SDSU Jane Roe was, apparently, not that drunk, and she was not found to be incapacitated.
From a scientific point of view, when we examine all reported rapes in the United States, is the perpetrator a man or a woman? Purely from the perspective of cold facts, evidence and reports, what does the data show for the last 50 or 100 years or so?
I just see to have a wider range than you. I agree generally with the lower end of your range. I just think that if a range from zero to roughly .1 is drunk (as you state), then you can’t have a mere .025 additional BAC to get to very drunk.
I think this is probably where our differences come in regarding how to define very drunk and/or incapacitation. If incapacitation was defined as the “loss of good judgement” then I would absolutely agree with you. However, incapacitation is not defined as someone being so drunk that they have lost their capacity to make good judgements. It is very clearly defined as much higher than that. It is defined in most of these statues with words like “the inability to understand the nature of the act”. You can be drunk to the point of making bad decisions about whether to have sex or not and still be able to understand the nature of the act.
I will use the Oxy and Jane Doe story as an example. She was very drunk. She was so drunk that she was probably making stupid decisions. Those decisions included whether that was to have sex. They could have been decisions about whether to say something hurtful to a friend that she would regret in the morning, or to act belligerently toward a cop, or to jump off a 2nd story roof into a shallow pool (like I once did). But I don’t think there is any argument that she was able to understand the nature of the act. She asked John if he had a condom. That is someone who understands the nature of what they are about to do.
I’ve been perplexed by the John Doe at Amherst case. Wouldn’t he have grounds to file a very plausible sexual assault claim within the Amherst system? I was incapacitated (this seems to be agreed). She initiated sex with me without my consent. Then, assuming the facts are not totally different, if they maintain the line they’ve taken (not looking at relevant evidence, etc.), couldn’t he sue them for failing to honor their stated procedures and protecting him?
I’m not a lawyer and but am involved at times in civil litigation. It is often valuable to go on the attack to get some leverage. To me, Amherst looks like they are being politically correct well beyond the point of reason and are pretty vulnerable, at least in the court of public opinion but probably by their own stated standards. But John Doe probably has to make his claim, first in the Amherst system and then perhaps outside.
What am I missing here?
CF, my suspicion is that what you are denying here (that a woman with three beers cannot give consent) is precisely what the kids are being told and what the Amherst tribunal would find in such a case (if it were a female but not a male). I don’t think such a case would necessarily be laughed out of a tribunal.
I don’t post on these threads very often (you guys are too prolific for me to follow). I think the data suggests that there is a substantial amount of date rape on campus. The he said/she said nature of those situations will always make it difficult to build legal cases. But, I am concerned about what happens on college campuses when they try to create their own justice. Colleges are conservative (slow-changing) institutions populated by faculty and many staff who are very politically liberal and deeply ideological. When colleges deservedly get stung as Amherst did with terrible publicity about its unconscionably bad policies for handling rape on campus, they will switch over to the politically correct ideologues to administer justice. The pendulum will swing too far (at least in terms of individual justice – arguably the conviction rate will not match the number of actual cases, because of underreporting and lack of evidence). It will only be when they face legal or political costs from the overcompensation.
@“Cardinal Fang” what about the woman who was texting her RA? Or the case referred to much earlier on this thread where the accuser’s friends allegedly testified that she wasn’t “that drunk”? Wouldn’t you think those individuals were somewhere below the state where they couldn;t stand up and walk by themselves?
The reasoning is more indirect. You can’t know whether someone is going to have been in a blackout. However, if someone did black out, that means they were very drunk; a person doesn’t black out from two beers. And if they were very drunk, then there would have been signs at the time that they were very drunk, and they might have been so drunk they were incapacitated. So if a person blacked out, then we would be suspicious that they might have been incapacitated, and (if we were investigators) we’d interview witnesses to see if they were incapacitated. We’d ask friends, we’d ask the bartender, we’d check social media for texts and photos, and so on.
People keep saying that. But nobody has provided an example. We have quite a few examples of guys suing, but we don’t have any example of a guy suing because she had three beers and was deemed incapacitated. I realize that absence of evidence isn’t the same as evidence of absence, but you guys haven’t given me any reason to believe that any guy has in fact been disciplined for having sex with a woman incapacitated by three beers.
The woman texting her RA was the Amherst case. I’m not defending Amherst, because that case was bungled, but he was not found responsible for having sex with someone who appeared to consent, but didn’t consent because they were incapacitated. He was found responsible for forcing her to have oral sex against her will. I have no idea whether he actually did what they said he did, but I’m sure you’d agree that forcing someone to have oral sex is rape.
I don’t know which case you’re referring to about the woman who was not “that drunk.”
@“Cardinal Fang” and what proof would you find acceptable other than an admission by the accuser that she had three beers if the fact that she could text her RA afterwards, or that her friends didn’t perceive her as too drunk is insufficient? As a lawyer, how am I supposed to go about proving the exact amount of alcohol consumed?
@TV4caster , there is nothing about the definitions I have seen that is very clear. That is kind of the point.
Ask the bartender. But the onus is on the person who claims to have been incapacitated, and the investigators, to prove she was incapacitated. It’s not on the accused guy to prove she wasn’t incapacitated.
Once again, the woman who texted the RA was not deemed incapacitated. She was deemed to have been physically forced to have sex.
I think I get what you are saying though, I have had concussions during games when I later didn’t remember a thing other than a hazy recollection that I had played. I guess it is kind of the same thing.