After running around the hamster wheel on this topic for 6 months, I’ve come to believe that the crux of the problem is that the definition of “drunk” in “drunk sex” is a moving target.
As I said before even the terms are variable and weighted: drunk, very drunk, impaired, intoxicated, incapacitated, under the influence. If we start with @cardinalfang’s premise “that the level of intoxication be such that the victim is incapable of exercising the judgment required to decide whether to consent to intercourse” then we’re faced with a Mount Everest of possibilities in how we define the level of intoxication.
(At this point, I’m not convinced that college students are capable of exercising judgment about sex under any circumstances!)
Judgment – good or bad – is a slippery thing. What seems like a good idea at one point, may seem less so in retrospect. Consuming alcohol may surely decrease inhibitions, but how much alcohol and which acts and with whom are wildly variable depending on the people, the situation and the phase of the moon.
The argument circles back on itself: I used bad judgment when I consented; therefore, I must have been over the level of intoxication. Otherwise I would have exercised good judgment and told the guy to get lost.
I think that’s what’s going on in so many of these cases, pure and simple regret, guilt, remorse – sometimes with a sprinkling of revenge. Allowing the accuser to control the how drunk is too drunk decision is an easy out for those suffering from regret sex, one often encouraged by victim advocates.
Unless they can draw on physical evidence or multiple witnesses, it’s impossible for college committees to judge the accuser’s level of intoxication, weeks or months after the event. Thus under the OCR’s mandate of preponderance of evidence they have no choice but to give the accuser the benefit of the doubt. Once they’ve established that the accuser is more likely than not to have been drunk enough to do something she may not have done while sober (which no one really knows) then Bingo! it must be sexual assault.
My conclusion is that absent persuasive evidence, the colleges should not be deciding felony rape responsibility one way or another. The consequences are just too severe. There should be a “We just don’t know” category leading to counselling for all parties.
