The point is, that a black out state is defined as not having the ability to consent. So either these policies are saying it is ok to rape someone who can not give consent, or they are making determinations based on something other than the objectively observable actions taken by the complainant in the moment. Certainly Amherst at least implies that there are other factors to consider, and directly puts the burden on the accused to be “aware” of the other party’s alcohol or drug use, presumably over some indeterminate period of time.
No it isn’t. Go back and read what you quoted. Incapacitation is a state of intoxication beyond just being drunk. A person may experience a blackout state. In that blackout state, they may appear to consent, but may actually be too drunk to consent. It is therefore imperative, the Amherst code says, that students be aware that someone may be too drunk to consent. If a reasonable sober person could have determined AT THE TIME that the person was too drunk to consent, then it’s no defense that the accused person truly did not think the person was too drunk to consent.
This is exactly the same as the standard for statutory rape. A person can be too young to consent. If a reasonable person would have believed the child to be too young to consent, then the accused can’t defend himself by saying the thought she was of legal age, even if he truthfully thought she was of legal age.
@“Cardinal Fang”, the actual language as quoted is clear. It reads “[a]n individual may experience a blackout state in which he/she appears to be giving consent but does not actually have conscious awareness or the ability to consent.” It doesn’t say that they must be blacked out and also incapacitated. It says directly that the blackout state means the person “does not actually have conscious awareness or the ability to consent.” Notice also that the definition of blackout state uses the term “conscious awareness”, the only time that phrase is used. The phrase is not defined, but it seems to dovetail with what in fact the common understanding of an alcoholic blackout is. The clear intent of the sentence also seems to track fairly well with the definition of an alcoholic blackout.
In this sense, your example of statutory rape is apt, although I believe it cuts in a direction you do not intend. The reasonable person standard is not a defense to statutory rape, because an underage person can not definitionally consent to sex. It is a strict liability issue (at least in most states). The same appears to be the intent here.
Now, on to lawyer stuff. Notice that the very next sentence puts the onus on the accused to be “aware of the other person’s level of intoxication.” Again, it doesn’t say that the accused must or should know that the person is incapacitated (which would be redundant), only that they are somehow supposed to determine the level of intoxication. It is a positive burden of actual knowledge ('be aware"). That sentence is clearly intended to modify the preceding sentence about blackout states (note the therefore). This burden to have actual knowledge of the person’s level of intoxication is a very different burden than whether a reasonably sober person knew or should have known that someone is incapacitated. The very first sentence identifies incapacitation as something other than intoxication. Why then use the word intoxication in the sentence discussing blackout states unless the intent was to discuss a different level of knowledge? Last statutory construction point. Note that the reasonable person standard only applies to incapacitation. It does not apply to intoxication, conscious awareness or black out states. Why do you think that is unless the intent of the provision was to capture assaults which occurred when a woman was blacked out?
At the end of the day, I agree with your post from last evening. It doesn’t make any sense within the context of the idea that the reasonable person standard controls. Which is why I said it is a pretty big loophole, one we seemingly see being driven through in a number of cases where a finding of no consent to sexual activity is made even in the face of things like a woman’s friends indicating she was fine, or texts from the complainant shortly after the sexual activity. The conclusion I draw from this is that college sexual assault policies are pointed at protecting victims more than punishing wrong doers, and that in an effort to “capture” all of the situations of concern you end up with poorly drafted and essentially non sensical provisions.
@Ohiodad51, how do you explain this?
What the reasonable person is supposed to be aware of is whether the person’s intoxication rises to the level of incapacitation.
IMO, the document would read better and be more sensible if they left out the blackout state part entirely, but as I read it, the blackout state comments don’t have force. That is, it is true that sometimes people who drink get in blackout states, but nobody at the time can know if they are in one, so it is not possible that reasonable person could know that the person was in a blackout state. The blackout state is a possible manifestation of extreme drunkenness, but it’s the extreme drunkenness, not the undetectable blackout state, that the reasonable person could perceive.
They’re supposed to determine whether the intoxication rises to the incapacitation level.
Simple-- to emphasize that if a woman is incapacitated, and the reasonable sober person would be able to tell she was incapacitated because it was obvious, then her seeming consent is not a defense. She might have been in a blackout state where she seemed to consent (but would not remember afterwards). Or she might not have been in a blackout state, and seemed to consent. Either way, if she was incapacitated, she didn’t consent.
Broken record here. The standards/policies aren’t the meaningful issue. The lack of proof is the meaningful issue.
A very drunk person may or may not be in good enough shape to provide consent. Hard to say where that line is in any particular case (unless we adopt a BA level and breathalyzer tests for sex).
But a person who suffers from alcohol induced amnesia the next day (i.e. blacked-out) by definition will NEVER EVER be able to testify about the circumstances surrounding consent (or not).
Sober rape victims usually can only muster the weak proof of he said/she said, which proves to be inadequate in most cases. Blacked out rape victims can’t even do that – they can’t even testify to the she said part. Talk about a proof problem!!!
The Vanderbilt rape victim had no memory of her attack. One of the attackers also had no memory of the incident. The only reason why that case was prove-able was because of the security camera video and the photos/text messages that the attackers sent while massively drunk (and which they probably couldn’t remember sending).
@“Cardinal Fang”, yes it would be clearer if they took out two of the four sentences of the definition. But you can’t just ignore them.
"Blacked out rape victims can’t even do that – they can’t even testify to the she said part. "
One of my students was expelled despite the accuser having no memory of the event. 100% of the evidence against him was HIS statements about the encounter, made when she asked him what happened. If he’d said, “Go to hell, I’m never speaking to you again,” he’d still be a student. But she was upset and wanted to know everything he remembered, so he acted like a friend and told her.
I think you have to remember that this isn’t a statute, it is a college policy. As such, it has a purpose beyond just listing the legal standards and penalties. I think the reason why the Amherst policy includes mention of the blackout state is to try and help students understand why those who express consent may, in fact, not be capable of consent. The relevant standard for adjudicating culpability, however, is the reasonable person standard. The other paragraph doesn’t extend the standard to require a student to know what a potential sexual partner has imbibed. It is simply saying that if you reasonably should have known that your partner was not capable of giving consent, then the fact that he or she verbalized consent will not protect you from a charge of sexual assault. I agree with @“Cardinal Fang” that it could have been written better, but I think the standard remains clear. Frankly, I agree that a student should not have sexual contact with someone if he/she should reasonably have known that the partner is incapable of offering consent due to drug or alcohol consumption.
I never had a conversation with either of my two boys about “consent”… perhaps a major oversight on my part, but I did have a short conversation with each of them when they turned 18 years old, warning them that they could go to jail for having consensual sex with a younger girl.
I never had a conversation with either of my kids (S or D) about consent, other than when they were in preschool and we talked about good and bad touching. They tend to be quite cautious and tend to stay away from situations where there are drunk and drugged people, so I’m not too concerned. Both have safely completed college and neither seems attracted to people much older or younger than they are; they and most of their friends are mid to late 20s.
What did he say he did?
The operative thing he said is that they had sex. It’s not in dispute, in retrospect, that she was too drunk. Whether a reasonable person would have realized that is a different story. (If there is such a thing as a reasonable 18-year-old freshman boy.)
I will never, ever accept the defense that it’s OK for an 18-year-old boy to sexually assault a woman because he is young and inexperienced and didn’t know better. If a reasonable person would have thought the woman was too drunk, then it was assault. If the guy is young and inexperienced he needs to keep it in his pants unless he knows she is not too drunk.
This is exactly what I mean by norms. Don’t even suggest for one millisecond that it might be OK for a guy to rape a woman who is so drunk she is incapacitated, just because, oh poor thing, he was only 18 and didn’t know better. When a few of these rapists get thrown out of college, maybe the rest of them will get smart in a hurry.
Hey, CardinalFang, what did you think about my breathalyzer idea ( #812)? It would seem a clear cut way to resolve a dispute that has now extended to 800+ posts. Why rely on the subjectivity of a “reasonable person” or definitions of “black out” when you can define a metric for incapacitation?
If you can legally drive a car, then you can give consent. Agreed?
I would hope that tribunals would love to have hard data regarding the alcohol levels of the participants in the sexual encounter. (Use of drugs, of course, would not be encompassed.)
Requiring a breathalyzer test is certainly awkward. But so is insisting on “yes means yes” at every single step of a sexual encounter.
If you can legally drive a car, you are far from being too incapacitated to consent, even for people who think someone can seem to enthusiastically consent but be too drunk to consent.
Breathalyzers in dorms would be seen as a challenge: who can blow the highest number?
@“Cardinal Fang” Why are you so malicious towards boys. There are wayyyy to many boys being expelled over the gray area of consent.
If a girl gets to a functioning black out state and then claims rape in the morning what do you think? Also what do you think of the fact that a boy would also be charged with rape if he was in a blackout state.
There is a huge double standard that says “women have no responsibility during sexual interactions and should not be held accountable for their actions.”
If a girl goes home with a guy and the girl is blackout, this is rape
if a girl goes home with a guy and he is blackout, this is still rape
if both parties go home blackout, this is still rape
All are accusations made against guys. Why can’t women be held just as accountable for these interactions if witnesses see no malicious intent before or after the act.
I am not talking about cases where there is a dispute over consent, but over regret and benefit of doubt.
If both parties have little recollection, or any party does. Then how can we charge the other party as a rapist?
Here is a link I posted, please read this and tell me that women don’t rape in the exact same circumstances, difference is guys don’t go cry wolf because they barely remember the night before.
http://totalfratmove.com/im-a-guy-and-i-was-raped-by-a-girl/
If a woman has sex with a guy who is too drunk (for whatever the standard of incapacitation is for women) she is guilty of sexual assault and should be treated exactly the same as a guy who has sex with a woman who is too drunk.
Also, if I were the administrator, if person A accused person B of having intercourse with A when A was too drunk, and I determined that both A and B were too drunk, I’d give them the same punishment. Probably I’d suspend them both for a quarter so they could think about it.
I’m not here advocating any particular definition of “too drunk,” except that whatever it is, it’s a lot drunker than the .08 BAC used for drunk driving. But whatever the definition is, it needs to be the same for all.
"I will never, ever accept the defense that it’s OK for an 18-year-old boy to sexually assault a woman because he is young and inexperienced "
No one gave that defense. Noting the FACT that 18-year-old boys are idiots is not that same as saying that idiotic behavior is OK. I’m describing the world we live in, not calling it OK. It is a fact that humans generally acquire better judgment as they get older.
It’s not at all clear, in my student’s case, that a reasonable 45-year-old would have realized she was too drunk. She was one of those blackout cases who was walking, talking, climbing stairs, etc. But she remembered nothing.
“I’d give them the same punishment. Probably I’d suspend them both for a quarter so they could think about it.”
That sounds fair to me. But if they both committed rape, and drunk rape is the exact same thing as holding someone down while they’re screaming, how can this be enough punishment?
But the provisions of the school’s policy will be important in those cases too. Isn’t that what “did in” our John Doe in the Occidental case? All the outside investigators agreed with his contention that he was impaired beyond the point where he could understand or reasonably ascertain Jane’s condition. If the school’s policy did not address that scenario (which a lot don’t) then perhaps a reasonable tribunal could have done exactly what Cardinal Fang suggests.
But when the case was actually adjudicated by the outside lawyer, he/she had to apply the school’s actual policy to those facts in order to render a decision. Occidental had that clause in their policy that stated " intoxication does not diminish one’s responsibility to obtain consent." So what was the lawyer to do? And if under the school’s policy he is technically guilty of rape, can you then impose a semester’s suspension?
I am not sure if that case would have turned out differently if John Doe hadn’t taken the stance that he was too intoxicated to perceive Jane’s condition. Guess we’ll see how the courts rule on the pending litigation,
@Hanna Are you saying that because she was in a blackout state it is clear, in retrospect, she was too drunk to consent (#831) but that it is not clear whether a reasonable person would have been able to observe that (whether 18 or 45)? I thought your first comment meant the man should have known.
If schools are using the falling down drunk, unable to walk standard, it would seem like there should be some good evidence to show the woman was too drunk to consent and could find the man responsible and that would hold up on appeal and in court. Somebody else must have been at the party or in the dorm when they came in and would have seen the state she was in. Are the schools doing a poor job of investigating, are kids reluctant to speak out unless the woman is truly passed out, don’t notice because that level of drunkenness is common and so not of concern to the other kids, or some other reason?
That is what makes bystander education so critical - to educate students on to spot a girl that is “too drunk”, to stop these situations before they get out of hand and to back up the victim’s account if assault is alleged.