NYT article: ‘Willing to Do Everything,’ Mothers Defend Sons Accused of Sexual Assault

Parent Cafe
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In previous incarnations of this discussion, we’ve talked about people being “blackout drunk.” When I first learned heard this term, I was confused and thought it meant the person was blacked out, or unconscious. It doesn’t.

Just to review the definition, someone is blackout drunk if they are still conscious and functioning (more or less) but are no longer forming memories. They will wake up the next day and not remember the preceding events. It’s the same as the memory loss that occurs after a head injury.

The person who is blackout drunk probably won’t realize it at the time, and outside observers can’t tell the difference between someone who is blackout drunk and someone who isn’t. Well, maybe they could with a prolonged conversation if they already knew the person, but it’s not reasonable to say that, for example, it’s rape to have sex with someone in a blackout drunk state. Outside observers can’t tell.

Being blackout drunk is, clearly, not an excuse for raping, unless the person was fed the alcohol without their knowledge and consent. (I don’t mean to imply JHS was saying it was an excuse.)

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I knew you were a woman. Glad to hear you are not a crazy lunatic fringe man hating woman :slight_smile:

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I sometimes think that way as well.

Of course under the MADD model you are not allowed to think that way. That approach dictates that there are no upstanding citizens who just made a single mistake. There are no “accidents” according to the MADD approach – the behavior is criminal. Apparently there are some who think this is the thinking that will get us the best results. :slight_smile:

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So back to the OP and Judith:

While I tend to agree with JHS, way back in post #8 I’m sorry, but there’s way too much sloganeering on both sides of this issue., it’s possible Judith’s son may have benefited from education. Even if the charges were completely unfounded, maybe he could have avoided the situation if he had been better informed about various kinds of sexual risks on campus. Of course, we can’t know what this case is all about.

Some phrases seem to really be trigger phrases for some parents. I don’t care what we call it. We do all our children a disservice by not having some really in-depth, serious discussions about consent. I am concerned how many parents on this board seem to object to the idea parents or colleges should be providing this type education, because it is seen as an insult to their kids and maybe their families. Even if your kids don’t need it, it would seem reasonable to support that sort of education for everyone else, because clearly all kids don’t go off to college understanding what they need to know about these issues.

Would there be objections if we agreed to “educate all our children to understand what consent means, and be a helpful bystander” rather than advocate we “teach our sons not to rape”? It seems to me we should all be relieved if colleges provide this sort of instruction to entering first-years as part of orientation.

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My approach was to ensure that both my children completely understood the definitions of sexual misconduct and consent under their student conduct codes. Those are the definitions that will control if a complaint is ever made against your child.

I really do not think enough attention is given to the contents of the college policies on sexual assault. I think students just click “I agree” and press “submit” and don’t ever actually read the policy. I think that is a very dangerous approach in this present campus environment.

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I disagree about “accidental” drunk drivers and “accident” rapists and the MADD model.

To be sure, MADD says that a drunk driver committed a crime, even if they didn’t realize they were too drunk to legally drive. But the MADD approach also teaches people that there is a bright line, and teaches them how to avoid crossing it.

Similarly, someone who rapes a semiconscious person has committed a crime. But, for example, many teenagers are clueless. Some of them, for some inexplicable reason, think being unconscious constitutes consent. If we can educate them, then some of these clueless young people will become less clueless and won’t commit crimes. And they won’t aid and cover up others’ crimes.

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I have daughters and a son. I worry about all of their safety. I worry about any of them being wrongly accused.

I have had conversations with all of them in great depth about consent. Men and women need to respect each other’s bodily integrity and intentions.

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This is why I very much like the idea teaching affirmative consent. If we only teach “no means no” and someone passes out in the middle of an encounter, a clueless teen may well believe there is still consent to sex. I have read arguments from clueless adults to this effect after the Brock Turner case, not here but other places.

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That’s not my interpretation of the paper I linked upthread on MADD @“Cardinal Fang”. That was the whole point --they were successful in changing public sentiment by employing a scorched earth approach that tolerated no deviation from the act being thought of as anything but criminal. There were no excuses or “accidents by upstanding citizens who made a single mistake.” There of course was an educational element but in my mind that goes toward prevention. If you drove while drunk there were no excuses or mitigating circumstances.

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I’m not disagreeing with you, HarvestMoon1. I’m saying a different thing.

MADD says that people who drive with an illegal BAC are criminals committing crimes, no exceptions. But also, MADD’s education makes people aware of what constitutes a crime. People who do not want to commit the crime of drunk driving, or at least don’t want to be arrested for drunk driving, but who might in previous years been unaware of how much drinking was permissible, are now more aware, as a result of the education of the last decades.

There are two steps here:

  1. Driving with a BAC of > 0.08% is illegal. It is drunk driving.
  2. Here is how to know if you might have a BAC of >0.08%. If you could be near or over that line, don’t drive.
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That may be your opinion on what the law should be, but it’s not a reflection of how consent is defined either legally or in student handbooks. In the vast majority of jurisdictions(probably almost everywhere), sex with someone blackout drunk is rape.

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@Hanna wrote

IMO, you’ve really twisted my argument. You said that the rape problem can’t be solved by punishment. To prove this, you said that rape used to be punishable by rape and rape still existed; QED punishment doesn’t work.I disagree; punishment is not just about the penalty, but also about the likelihood that you will get caught and receive the penalty. When the chances of that are extremely low, the draconian nature of the punishment doesn’t matter.

How do we change things? One element of change–I’m NOT saying the ONLY element–is ensuring that the odds of being caught are increased and the punishment is applied. While there are problems with the analogy,. MADD did NOT just change public perceptions of drunk driving. It also icampaigned for stricter punishments for drunk driving and tough sentences for those who were caught and convicted. The odds of getting caught and the length of the sentence you receive were changed by the MADD campaign and the prevalence of drunk driving was reduced.

I am advocating that part of the answer is having strict punishments that are applied. EVERYONE should know that having sex with a passed out person is a crime, punishable by decades in prison. The John Kennedy case is a great example of actually doling out the punishment. So is the Vandy case. But apparently in the Kennedy case, the perp was surprised by the severity of his sentence. Judith in the NYT didn’t think her S had done anything worth punishing. We need to have young people know that if they have sex with a comatose person and get caught, sentences like that will automatically happen. Just as people now know how tough DUI sentences can be.Sentences like Brock Turner’s-- onvicted and got 6 months and actually served 3-- can NOT be permitted to happen.

Other things we could do? Process rape kits. And those jurisdictions which require that the victim PAY for a rape kit should stop doing so. Moreover, there should be a natioonwide database of DNA in rape cases.Will this stop sexual assault? No, of course not. However, it might reduce it. So what else can we do?

We can provide that no student can avoid punishment for sexual assault by withdrawing from a college. It shouldn’t be easy to simply withdraw and enroll in another college. If you are found to have committed sexual assault–with appropriate safeguards-- that should be noted on your transcript.

The possession of “roofies” should lead to automatic expulsion. The fact that you possessed them and that’s the reason you were expelled should be noted on your transcript. It should not be blank or state that you were expelled for drug possession. Additionally, if someone is roofied at a social event–even if no resulting rape is proven–the host should be closed down. Yep, that’s right…if someone is proven to have been roofied at a frat party, the frat is closed down and all the residents have to find another place to live.

Give me time and I’m sure I could come up with lots more ideas. But, yes, I think imposing these might make a dent in sexual assault. They won’t eliminate it–on campus or off–but they might reduce it.

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Do you mean, sex with someone who is “blacked out” (unconscious), or sex with someone who is in a “blackout state” (conscious, able to walk and talk, not forming long term memories)? I’ve looked at a lot of state statutes, and never seen one that criminalized having sex with someone in a blackout state. The outside observer can’t tell if someone is in a blackout state.

On edit: This is JHS’s description of the friend when blackout drunk: “Thus, if you knew him, and you saw him without his glasses, you pretty much knew he was blackout drunk. But he would be full of energy (and sometimes rage), and very talky and outgoing, if a little spastic in his movements.” Would it be illegal for someone who did not know this guy to have sex with him, when he was full of energy, talky and outgoing? I doubt it.

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But @“Cardinal Fang” Change your facts a bit.

What if the person who has sex with @JHS 's friend, does know him and does know when (s)he meets him that he is blackout drunk? Is it okay for that person to have sex with JHS’s friend, while knowing he’s blacked out? I think that’s the more common scenario in acquaintance rape cases.

It may be due to the difference in our ethnicites, but I know a lot of people who have had black outs. I have a client who committed a fairly serious crime while blacked out. The irony is that, knowing he’d probably get drunk, he set up certain safeguards to prevent himself from doing certain things while drunk. In his blacked out state, he circumvented all of his safeguards. He did something he NEVER would have done while sober.

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In many, maybe all states the answer would be yes.

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I don’t think whether a person is forming long term memories is relevant here. It sounds to me like JHS’s friend was able to make and communicate decisions. He decided to talk and did talk. He decided to drive and did drive.

He may have been making bad decisions. He may have been making decisions he wouldn’t have made while sober. Although I don’t think a person of honor should have sex with someone who is drunk if they believe the person wouldn’t have wanted to have sex with them if sober, I also don’t think it is illegal or should be illegal.

Bottom line: that the person is blackout drunk is irrelevant. What’s important is whether they can make choices and communicate them.

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@“Cardinal Fang” I respectfully disagree if the person on the other side of the equation is aware that if (s)he weren’t “blacked out” the person would NOT make the same decision. So, I’ll grant the stranger may not know this, but a “friend” who does should NOT take advantage of the situation.

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I’m saying they shouldn’t do it! It’s wrong. But not illegal.

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@“Cardinal Fang”

This provides a good introduction to the issue: http://www.ndaa.org/pdf/pub_prosecuting_alcohol_facilitated_sexual_assault.pdf. Your understanding of the law is not correct, although it might be in the particular state you live in.

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I’ve read that document before. On skimming it again, I fail to see any part that states that someone in a blackout state cannot consent to sex. Here is some discussion of the blackout state, on p. 15:

But note, this discussion concerns how to prove the alleged events. The document is not saying that because the victim was in a fragmentary or en bloc blackout they were unable to consent. Rather, the document is saying that if the person can’t remember what happened, they can’t testify to what happened.

Now consider pp. 37 and following, discussing how the prosecutor should handle a defendant who says the alleged victim was in a blackout state.

Here, the document is saying that the prosecution ought to focus on how drunk the alleged victim was. If they were in a blackout state, then (the argument goes) they were very drunk, and if they were very drunk, they were so drunk they were unable to consent.

But the lack of consent comes from the obvious drunkenness, not from the unknowable blackout state. In other words, the prosecution would be arguing that anyone as obviously drunk as the alleged victim was, whether in a blackout state or not, would be unable to consent. The intoxication, not the blackout state, would be the reason the person could not consent.

Notice that in this example (on p. 37) the defendant is raising the alleged victim’s blackout state as a defense. If being in a blackout state was prima facie evidence of being unable to consent, no defendant would do that-- they would be admitting guilt.