I suppose that depends on your definition of drunk. I could see some lawyers making the argument drunk always implies substantial impairment, for example.
If someone can text, can walk under their own steam, can take off their own clothes or can make a phone call they are not, in my opinion incapacitated and probably not seriously impaired. Seriously impaired in my mind means you can’t walk without help, you can’t text in any meaningful way and other things. Incapacitated is passed out. It is my opinion that no one could honestly say they know with certainty who is telling the truth in the absence of some verifiable corroborating facts. It also galls me that Cincinnati gave the female accused and found guilty a pass by not naming her but colleges don’t think twice about naming a male student. That alone is discriminatory practice. I find it predictable that sooner or later some of these drunk students would have sex and then race to the Title IX office to file first given the manner in which most unis have executed Title IX obligations.
@roethlisburger, I challenge you to find one person in the United States who was convicted in a court of law of sexual assault, where the prosecution acknowledged that the “victim” affirmatively consented to the sex, and the offense was that the “victim” was too drunk to legally consent. I can’t imagine a prosecutor in the United States bringing such a charge, let alone winning.
It is true that some colleges discipline students, usually men, for the offense of having sex with someone who was a willing participant but who was allegedly too drunk to consent. That is not the same as those students being convicted in court, and it does not mean that having sex with someone who is very drunk, yet an enthusiastic participant, is illegal.
Exactly so, and this is how prosecutors interpret the law as well.
@CaliCash, Thank you for this article. I don’t think enough people understand how Title IX is being misused. There are girls using it as a tool to get back at boys. These aren’t cases of drunk hook ups. Girls have been known to file against former boyfriends in retaliation for a breakup, against a one night stand after a consensual encounter that she later regrets, or against a boy who thought they were dating when she was merely having a fling and doesn’t want her real boyfriend to know she’s been cheating.
It’s not a matter of who complains first. I know of a case where 2 students in a long-term relationship both complained. The boy made his report first. The school was under investigation for finding too many cases in favor of the boys, so they called the girl in and helped her file a report and never filed his. He was told from the outset that he was going to lose and he did, even though he had evidence of harassment that included police reports. If you Google Title IX wrongful convictions you’ll find plenty of similar stories. Colleges aren’t equipped to handle these cases, and when federal funding is tied to the outcome they have no motivation to be fair to the accused.
The entire system is manipulative and fraught with manipulation and discrimination which is why it is slowly and painfully being torn apart to meet fairness and legality.
Let’s be logical here. Men are not having sex (though they could have sexual contact) without consent. They kind of have to be mentally engaged to function, unlike women.
I think everyone should just keep their clothes on and solve this problem. Don’t be having sex drunk or with people to whom you are not committed - problem solved. Right. I know…we have to just accept it because it happens (but somehow that logic is not applied to other areas).
No, we don’t. My kids know they are responsible for the outcome of situations they voluntarily enter, wisely or not, so it is better to be wise and don’t go there in the first place if you won’t like the most extreme possible outcome.
NO one is responsible for being the victim of an attack, of course. No one is justifying that, but only discussing the the drunk entanglement that looks unwise to one or both in the morning light. So make a decision up front that you aren’t doing this. Don’t even be anywhere where you might think about doing it. Don’t be alone with a woman who might accuse you of doing it (Mike Pence was right about that, and Billy Graham had that policy as well). Or I guess a man who might accuse you, these days.
My spouse made that decision early on, and looked for that mate for life. Me.
I know this will be a popular opinion here, but my job is to tell my kids the truth. And the truth is that they can have serious unpleasant outcomes just being with the wrong person and doing what feels fun right now but can have outcomes like disease, pregnancy, or legal proceedings. So I’m doing my job. If they fail, it’s not on my head because I wanted to be the cool and accepting parent. That’s not me. BTW, I have heard a few times already that I was really right about (fill in the blank).
IMO, guys should not have sex with fellow students in their college these days (unless there is a contract spelling out what will and won’t be allowed*). It’s just too dangerous. Even if both are sober. They just open themselves up to too much risk (the woman can still report even if the guy did nothing wrong and it was consensual at the time; I’ve heard too many stories of girls filing a report because of regret or because they felt bad about it or because the sex was bad or they felt shame even if they verbally consented, and the college Title IX process is not what I would call fair).
- And possibly even then.
Kind of like how you shouldn’t have sex with a co-worker. Is this sad? Kind of, but the risks to the guy are just too great.
Laughing at the idea of them drawing up a contract first. 
You are right. It’s too risky.
I just can’t believe it took over 5 years to finally start stopping the wrongs that were done. I will always wonder what happened to that poor young man at Occidental let alone what happened to the poor young woman who was so manipulated by college employees to ruin another person’s life and that one happened in 2013 and is probably still in the court system I suspect.
@“Cardinal Fang”
Is it even possible for a drunk person to affirmatively consent?
Sure drunk people can consent. They agree to all kinds of things. Good example is drunk people who pull over when they see cops lights behind them. Sure there is the occasional drunk who doesn’t consent to pull over but the vast majority do. My husband consents to dance when he’s 3 sheets to the wind something he’d never do sober. People lose their inhibitions when they drink. That is why claiming you were drunk is a good acceptable excuse when you agree to do something you wouldn’t typically do and you wish the next morning you hadn’t. I can think of dozens of examples of what lubricated people consent to do when they have too much to drink. As long as you aren’t passed out on the floor or unable to stand on your own two feet unaided most people know what they are doing and remember it in the morning in my opinion unless maybe they are alcohol induced blackout and seem normal.
I’m not sure what you mean by this question. I’ll give some possible glosses and their answers. Let’s define “seeming consent” as whatever a sober adult would do to consent to sex.
Is it possible for a drunk person to seemingly consent to sex, which is to say do everything a sober person would do to affirmatively consent to sex? Yes.
If a drunk person has seemingly consented to sex, does the sex count as rape in the eyes of the law? Not if the drunk person is an adult and was not forced or tricked into it.
Are there some colleges that have rules asserting that for purposes of college sexual assault tribunals, seeming consent by a drunk person doesn’t count as consent? Yes.
Notice that there are some people who cannot affirmatively consent to sex, namely children. Notice also the difference between an adult being prosecuted for rape with a woman who was drunk, versus an adult being prosecuted for rape of a child. The adult prosecuted for rape can defend himself by demonstrating that the woman seemingly consented. If she seemingly consented, he will not be convicted, as consent is a defense. But the child rapist is in a completely different situation. He can assert that six-year-old Jenny consented, but the prosecution and the judge will have none of it: six-year-olds, unlike drunk adults, cannot consent to sex no matter what they do.
High profile men get publicly accused of raping drunk women from time to time. A common defense is asserting that the sex was consensual.
I don’t believe you, although this might be approximately true in some states.
@“Cardinal Fang”, we (and the article) aren’t talking about “under the eyes of the law”, we are talking about under the Title IX process.
The article CaliCash posted is talking about misuse of Title IX, not what counts as a criminal offense under the law. That’s the point. Neither the law not it’s protections are available to the boys accused under Title IX.
These boys are openly, actively encouraged to incriminate themselves and they don’t even realize it’s happening. They get no guidance and the people on campus that they’re supposed to go to for help – who they know if they have sought advice or counseling – are now going to use every word they say against them. College aged boys don’t know better. If a counselor, especially someone they know and trust, calls them into their office and asks if they’re seeing a particular girl and if they’ve had sex can kiss his college career goodbye if he says yes. These aren’t presented as accusations. They’re friendly, encouraging “let’s get to the bottom of this misunderstanding” type conversations.
Boys are attempting suicide because there’s no recourse for them if they’re found responsible. There are no Miranda rights, their ability to present their case is limited, and the people deciding any appeal have a vested interest in the outcome. Federal money is tied to each school’s Title IX case result record. A boy from an upper income family can hire lawyers and a college consultant like @Hanna to help them move on to another college. Low income students aren’t so lucky.
Not to mention moving into another college is most often a huge loss. Yale’s Montague is enrolled at Belmont to finish his last year. Even if they are able to finish their degree it is never apples to apples.
If every parent of boys brought the boys up to have sex exclusively with willing, non-intoxicated partners, the problem would be reduced. If young men applied peer pressure to prevent their friends and acquaintances from raping young women, the problem would be reduced.
I oppose injustice in all forms. Therefore, I am troubled by the difficulties encountered by young men who thought they were having consensual sex and later discovered that the woman felt she had not consented, or had been too intoxicated to give actual consent. I agree, this seems unfair.
On the other hand, I think it is important to understand the origin of what seems like over-reaction on the part of Title IX offices. That is, women are raped on college campuses. True statistics are hard to gather, but just based on the number of cases that I know of (as a university professor), it is pretty clear that the number is unacceptably high. Title IX cannot help women who are not on college campuses. Attacks on those women are clearly problematic, too, but Title IX is being used at some universities to help to protect women on campus.
It is interesting that austinmshauri used the term “no recourse,” because I had been thinking of using the same term in a post about young women who are raped. Apparently some Title IX offices react strongly to accusations, but the ones with which I am most familiar do not. If there is not strong evidence in a “he said, she said” case, the accused person almost always faces no action. Taking the case to the police does not help if the standard of proof beyond a reasonable doubt cannot be met–which is typically the case when there are no witnesses (which is also typically the case).
In a recent instance at my university, a student took a case to the Title IX office, complaining of rape, and the only outcome was that the students were moved into different sections of a course that they were both taking. Sometimes nothing at all happens.
I think it is highly probable that the incidence of attempted suicide and actual suicide is considerably higher among rape victims than it is among the accused. The need for therapy tends to be very high. The victim may suffer from PTSD, and that is debilitating. It would be really helpful if researchers could figure out a way to stop flashbacks. The victim may need to interrupt education, or drop out entirely.
I think it has to be recognized that the claim that the sex was consensual, or apparently so, will be the first defense of any accused person, whether the sex was actually consensual or not, and whether one or both parties were drunk or not. Sometimes the accused person is telling the truth and sometimes the accused person is lying. Some of the recent research I have read suggests that people are much less capable of identifying lies than they imagine that they are. The Title IX offices at the universities with which I am familiar will not take action against the accused when there is any appreciable doubt about the circumstances.
If you look at case law, you’re going to find many instances where being drunk did not invalidate consent. You’re going to find many cases where a drunk person affirmatively consented to sex, and the person accused of rape was found not guilty for that reason.
And you will find no cases at all where a person was convicted of rape when the prosecution acknowledged that the victim consented, but the consent was invalid because of drunkenness.
The intoxication statutes are for cases where the defense claims the victim consented because she didn’t punch her rapist in the face when she was lying there semiconscious and talking incoherently, incapable either of consent or refusal.
I like this part, from Josh Engel, a lawyer defending accused students, about Doe v. Miami University:
I have previously posted about the Pomona University case where the school expelled a man for having sex with a very very drunk woman who seemingly consented, when he also was apparently very very drunk. I said that Pomona’s action was narrowly barely defensible because she registered a complaint but he did not. I’m glad the law is slapping back this practice. Even if it had been narrowly justifiable, it was never good or right.