“(2) Should a sober, reasonable person in the same situation have known that their partner was incapacitated?”
One drunk party is held to a standard of “reasonable sobriety” but the other is not.
A blackout state can only be identified after the fact. It’s defined as a condition where the person later does not remember what happened. So I don’t know how any reasonable person could determine whether a blackout state is underway or not. Some people get drunk enough to pass out, but don’t enter a blackout state.
The initial comment that I responded to had nothing to do with “blackout state.” The fact remains that many sexual assault policies use what a reasonable person would believe in attempting to define “incapacitation.” If you want to change the subject to what might define a “blackout state” feel free.
@HarvestMoon1, if a college defines a “black out state” as a condition where a party is unable to give consent, then definitionally it is immaterial whether the other party was or reasonably should have been aware of the complaintant’s incapacity. I don’t understand how that is unclear? I also don’t get how that is changing the subject.
@Ohio you made the following statement:
I corrected that statement in my post #796. Do you not now agree that college tribunals do in fact use “actual standards” of how a “reasonable person” would interpret the actions of the alleged victim?
No, I don’t. Two reasons. First, if you recognize the existence of a black out state than the onus on the respondent is not to judge the objective actions of the complaintant’s in the moment. At best, you are saying that the respondent must judge the level of intoxication/imbibing at some point prior to the encounter, in order to determine whether a black out state exists. Two, in general, the language used in consent policies is vague, and intended to be all inclusive (signs of incapacity may sometimes, but not always include, etc, etc). Add this to the obvious variability we see in the cases that are reported (understanding that we only ever hear about the outliers) from even the definitional language, and I do not see a lot of clear guideposts forming as to what the reasonable person standard looks like.
“If someone can figure out who is at fault if two same sex people go out and party hearty and then have sex and one files a complaint we might get somewhere. Is the at fault person in this case the one who weighs more? The one who is physically taller and bigger? The one who was on top? Inquiring minds want to know.”
The person initiating the sex act is responsible to determine that their partner is conscious, has the capacity to understand what is happening, and is consenting to participate in sex.
Whether they are male or female really is not relevant. The rules for two men is no different than for a man and a woman.
If by “on top” you mean initiating the sex act, then yes. Tall, bigger and weight really have nothing to do with it.
@Ohio - the policy is right there in black and white and states quite clearly the standard they are using to judge “incapacitation.” I really do not see how you can argue that tribunals do not use that standard, which is what you clearly stated in your #795.
And as an aside, this is not about who is" right" or who is “wrong” - that is immaterial to me. We all take turns being in both camps in these discussions. This is really about conveying accurate information so the discussion is based on some semblance of how these tribunals are actually operating.
I used Princeton because I thought it would have been a policy that you were intimately familiar with. I would also urge you to take a look at who sits on Princeton’s tribunals - and on the tribunals of other schools. Based on some of your posts, I think you might be surprised to learn that they are not made up of female Women’s Studies professors. Last year Swarthmore hired a retired judge to adjudicate the more serious cases and I mentioned upthread that the much discussed Occidental case was decided by a senior partner in a California law firm. The composition of the individual tribunals are available in every school’s sexual assault policy. They are worth a look. I really do think the school’s are trying to get this right.
""Many people think that when guys get a girl extremely drunk and incapacitated and then have sex with her that is “just drunk kids having sex.”
Getting someone else drunk? Do you mean forcibly pouring alcohol down someone’s throat? Because that is assault. Otherwise, women have agency. They can choose to stop drinking long before that point. College women are competent and intelligent people who are more than capable of making good decisions. Can they be overpowered by someone larger? Yes. But I don’t think that’s what you mean by getting a girl drunk. I don’t know if you believe that women are hothouse flowers who must be protected not only from men, but from their inability to make good decisions, and I hope you don’t send that message."
This is classic blaming the victim.
Of course women are capable of and may make a different decision. However, a woman (or man) who is extremely drunk and incapacitated can no longer consent to sex or much else. From a legal perspective, they are treated similarly to a person with a mental imparement when they are in that condition.
It does not matter whether the victim is a man or a woman. There are no special protections for women here.
The women are “hothouse flowers” argument is just silly. You are getting close to implying that when a woman accepts alcohol from a man, she has implicitly consented to sex, which is simply not the case.
Getting someone drunk is a totally different thing than taking advantage of a person who is drunk. Having sex with someone who is very drunk is rape. The getting to very drunk may or may not have anything to do with the rapist. I don’t believe one person is responsible for getting another drunk. Drugging, sure, but not getting someone drunk. There is no blaming the victim. If someone is assaulted in that condition, it is rape and fully the fault of the rapist. But I’m not buying getting someone else drunk on a college campus, whether sex is involved or not. Could there be peer pressure? Sure. But that always involves a personal decision at the age in question here.
@HarvestMoon1, I can’t explain my thinking any more clearly than in my last post. If a college defines a person in a blackout state as incapable of consent, than the objectively reasonable standard can not apply. It is a loophole if you will. We have all seen the egregious cases, which while they assumedly do not represent the norm, did apparently occur. It is the variability, case to case, that most troubles me.
And I also am less concerned with questions of good faith. I am sure most if not all people working these cases in colleges believe they are acting appropriately. I will admit that I believe OCR is motivated far more by politics than is probably healthy. To your point, I have said repeatedly that if the colleges want to, or feel compelled to, dip their toes in this water they would be far better served by hiring a couple actual investigators. I also applaud the use of retired judges, not just because I am a lawyer and therefore required to suck up to the judiciary, but because Judges are used to weighing credibility and physical evidence and attempting to apply the rules in a consistent way across a variety of distinct factual situations. I am not sure though that the use of such professionals is wide spread. Certainly there have been reports of single investigator models being run by people who appear to be victim’s advocates. I am not a fan of that model.
Either way a workman is only as good as his tools, and whoever is the decision maker they are constrained by the policies in place. And it is my opinion that the policies are poorly crafted. Which is not surprising given the political pressure placed on schools. Remember all of this is maybe five years old. That is not a lot of time to build a legal system from scratch.
As far as Princeton, I honestly haven’t really looked at their policy because frankly if my son ever finds himself in a situation I assume it will be factually driven. That said, I assume Princeton MIT and Harvard would be among the most restrictive in their policies, given those institutions’ well publicized struggles with OCR’s position here.
@zoosermom “Getting someone drunk is a totally different thing than taking advantage of a person who is drunk. Having sex with someone who is very drunk is rape. The getting to very drunk may or may not have anything to do with the rapist. I don’t believe one person is responsible for getting another drunk.”
Remember that for purposes of this thread, I am discussing alcohol and drunkenness as it relates to a college students ability to legally give consent for an participate in sexual activity.
In general I agree that the person drinking is responsible for their own actions. However, if a frat or other group is providing free access to unlimited amount of alcohol to undergrads, I think that they may also bear some level of responsibility for their actions. That is especially true if they provided alcohol to underage students, of if they provided alcohol to students and then allowed them to drive away from the frat house in no condition to drive.
Here’s a wild idea: Each dorm floor could own a breathalyzer that the students could use. Before a sexual encounter, each party would blow and record the level, perhaps in front of witnesses on the dorm floor. For starters, the same alcohol levels applied for DUI could be used to establish consent or impairment. Surely, if one is deemed capable of driving a car, one should be capable of giving consent for a sexual encounter. If either party fails the test, then the sexual encounter should end before it begins. If one party refuses to take the test, it would be a huge red flag and the other party should run for the hills
@whatisyourquest “Surely, if one is deemed capable of driving a car, one should be capable of giving consent for a sexual encounter.”
That is absolutely true.
In general when I am talking about a victim being incapacitated, I am contemplating a person with blood alcohol that is multiples of the legal driving level with symptoms like a staggering gait, slow slurred speech, vomiting, slow response time, and impaired cognitive ability. In contrast, if a student is around the legal limit for driving, they may be a bit buzzed, but there is no question that they understand what they are doing.
^ I agree. I was trying to establish some kind of metric for consent, rather than leave things up to the subjective judgment of a “reasonable person.” If one passes a breathalyzer test, then the consent given should be unambiguous to a tribunal. Conversely, if one cannot legally drive a car because of alcohol consumption, then one is almost certainly impaired with respect to consent in sexual encounters.
I don’t want continue this “back and forth”, but I do feel compelled to point out that while this may be the way that you think it should work, it is not the way some tribunals are operating. My only objective here is to have accurate information underlying these discussions. I honestly just don’t see how you can intelligently discuss what these policies actually say without reading them.
Here is one sexual assault policy that specifically addresses a “blackout state” and the standard to be applied. I don’t have the inclination to research any further.
And Amherst’s policy says a person in a blackout state can’t give effective consent. It also purports to follow the reasonable person standard. Sorry, can’t block copy from my phone. If you can harmonize those two statements, I’ll turn over my king.
I too am not going to canvas all the sexual assault policies on the various campuses. But surely you will recall reported cases (one at Cornell if memory serves) where even the accusers friends stated the accuser seemed capable of consenting but the guy was found guilty anyway because the woman said she was incapacitated.
Please link to the part of Amherst’s code that says a person in a “blackout state” can’t give effective consent. “Blackout state” here means a state where the brain is not forming memories; it happens sometimes when a person drinks a lot, and also after head injuries.
Since neither the person themself nor anyone else can determine whether someone is in a blackout state while they are in the blackout state, this alleged rule is impossible to follow, which is why I don’t believe it exists.
It may sometimes be the case that someone is in a blackout state because they are very drunk, and according to a college rule at a certain college any person that drunk cannot consent. I won’t comment on whether such rules are a good idea, but the blackout state would be irrelevant, as the person would be unable to consent because of the known, visible inebriation, not the invisible blackout state.
OK, so this is show your work day. Fair enough.
Amherst’s policy is at
https://www.amherst.edu/campuslife/health-safety-wellness/sexual-respect/sexual-misconduct-and-harassment-policy/node/497976
Here is the relevant language
Several schools use the same or similar language, which is not surprising since these policies, like most such documents, follow one of a handful of templates. Lawyers are lazy, and generally do not create things from scratch when a form exists that may only need to be tweaked. Which is one of the reasons I think it is possible to discuss the policies used in colleges without taking the time to read and understand each and every one, as some of you apparently have. Here are the first four using similar language defining incapacitation from a simple google search.
http://www.baylor.edu/titleix/index.php?id=873168
http://aaeo.usu.edu/files/uploads/Definitions.pdf
https://studentsexualmisconductpolicy.umich.edu/definitions
https://www.knox.edu/Documents/PDFs/TitleIX/Sex-Discrimination-Policy.pdf
Now, here is a medical definition of an alcoholic blackout, published by the Partnership for Drug Free Kids at http://www.drugfree.org/join-together/new-studies-shed-much-needed-light-on-alcohol-induced-memory-blackouts/
And here is the definition of an alcoholic blackout from the medical dictionary - http://medical-dictionary.thefreedictionary.com/alcoholic+blackout
So, we have a condition that definitionally removes the ability of a party to consent, that can occur in individuals who are not “fully” intoxicated (which I assume means really drunk) and during which the person can appear normal. Tell me again how this jibes with the application of the “reasonably sober person” standard? And since this seems to be a point of some contention, please explain what the he double hockey sticks the Drexel policy is supposed to mean within this context as well.
That’s the same objective standard the other policies use. If a reasonable person would not have known that the complainant was incapable of giving consent, then relying on the complainant’s incapacitated consent does not violate the policy, even if you could determine in retrospect that the complainant really had no idea whatsoever what she was doing.