“Jane eventually snuck out of her room, past her friends and her resident adviser, and made her way to John’s room, where she performed oral sex on him (which Jane says she remembers doing, but John says he can’t recall) and they began having sex (which both later said they didn’t remember).”
Did she get consent from John before performing a sex act on him, and then with him, which he does not remember? Is there any record of her asking him for an enthusiastic yes? And even so, he could have said yes a thousand times and it should not have mattered, as he was certainly as drunk as she, vomit or no:
"One of John’s new teammates told a mutual friend that the freshmen members had to drink a lot of beer and a “good amount” of vodka. According to this teammate, a group of four or five freshmen — including John — had to finish a half-gallon of vodka by themselves.
John returned to his dorm just as his roommate, Shawn, was preparing to go out for the night. Shawn agreed that John was clearly intoxicated — stumbling around, slurring his words, and talking loudly. "
Why, if John should have reasonably known Jane was too drunk, did Jane not have to know the same about John? Simply because he did not file a complaint it all piles on him?
If he files a complaint and she is found responsible for having sex without his consent, how does that help him? She gets expelled, but he is still expelled. She has dropped out anyway, so it doesn’t make much difference.
"Unless you happened to have a nose-- she threw up not once but several times while she was walking from her room to his room. And she was slurring her speech, and he knew she had already been quite drunk before she started swigging the vodka. It wouldn’t have been difficult for you or I to determine that this woman was incapacitated, if we’d been there and seen what he had seen.
I don’t dispute that she acted like she was consenting. I merely state that she was incapacitated, and a sober person would have known she was incapacitated. You would have known, if you were there and sober. You would have thought she was incapacitated."
Such a person is not incapacitated. They are IMPAIRED. If in that state of impairment she killed someone with a car or a gun she’d legally responsible and guilty of some level of homicide. But as a victim she is too impaired to give legal consent? Or to be held responsible for not objecting?
As HLS Professor Halley points out incapacitation is the easy (and relatively rare) case. Impairment is the hard case because it is a sliding scale. Someone can walk, talk, think and decide at a BAC of .05 and also up to a BAC of, say, 0.25. They are not incapacitated, they simply become more and more and more impaired. As a matter of policy, It is not clear at all at what point of impairment a conscious person ceases to be a legally responsible person for their own actions and inactions. The hard case is made doubly hard when the other person involved is also operating at some level of impairment. There’s an unlimited number of iterations of impairment combinations that can exist between the two involved. All those variations become triple-ey hard since the impairment may often wipe out the memory of one or both participants.
It is a fool’s errand to expect colleges or kids to be able to navigate legalistic consent constructs in the common (and hard) cases of mutual (and voluntary) impairment. Such situations are just a mess – in my mind very similar to having two drunk drivers crashing into each other. That’s why I think the OCR’s adjudication focus is so ineffective and harmful. So much better to focus the efforts on prevention, bystander intervention and cleaning up the dangerous and messy world of underage binge drinking.
It occurs to me that there may be many cases in which both students are impaired, and one of them files a complaint–and then the other, on advice of his (or her, potentially) own lawyer, also files a complaint. We may never hear about the resolution of such cases–because they probably get settled.
Well, yes, but you made it up. That is not what I was talking about.
The point is not that he “didn’t mind.” Don’t you think there have been intoxicated guys who have been seduced by women who have indeed bitterly regretted it? For whom it has resulted in significant personal turmoil ranging from feelings of intense internal shame through divorce and more?
And don’t you think that society at large would regard a man who brought a sexual assault claim against a girl in those circumstances, claiming that he was too drunk to consent would be laughed out of the court of public opinion? He certainly would be on CC, where numerous posters have repeatedly posted that a guy can’t function sexually if intoxicated and yadda, yadda, yadda.
Absolutely. Both you and I agree that some men have been assaulted by women, and they deserve redress. (Or at least, I take it that’s your position, maybe it’s not.) So then, you and I ought to both support a system where both men and women can accuse their assaulters. I do support a system like that, for the cases where the person was incapacitated. (If someone was in full possession of their faculties, and made a decision they now regret, too bad. That’s a different case. If you sign a bad contract while you are plastered, it’s invalid, but if you sign a bad contract because you made a bad decision, too bad.)
You say that we don’t have such a system in colleges now. And maybe we don’t, in every college, but clearly colleges are trying to go in that direction. Look at “Ryo” and “Taylor” and “Casey”-- Yale specifically is saying that men can accuse women.
Maybe a guy who accused a woman of assaulting him would be laughed off CC. But not by me. If his story was plausible, I’d be fighting on the other side. I say, bring it on.
There’s one issue I worry about here, though: blackmail. Suppose there was a student who was genuinely assaulted: their assaulter overpowered them and had intercourse, or they were unconscious. I’m hypothesizing a case where we’d all agree that this was rape. And suppose both accuser and accused had been drinking. The accused could blackmail the accuser that if the accuser registered a complaint, the accused would also register a complaint, and the accuser would be at risk for being thrown out of college for being raped if their story was not believed. But the solution to that problem is not to disallow men making accusations.
For me to do that would mean I think writing such a convoluted sex relations micromanaging policy is a legitimate exercise. I think it is not a legitimate exercise; it is nonsensical and kind of yucky, approaching voyerism in the bedroom.
I would institute an “Sex Equality and Fairness Act” that simply says both the male and female are responsible for their actions and both the male and female must determine / receive consent from other, even when intoxicated. And if no one knows what really happened because of intoxication, then you get counseling for your drinking problem. And both get a mark on their transcript and disciplined for underage drinking.
@dstark, in my view the exchange you posted shows that Occidental would do better to turn their post-coital regret counseling over to Shawn. He would be a lot more effective than the woman who repeatedly interviewed Jane Doe in an apparent–and successful–effort to convince her that she was raped, which apparently only served to maximize her distress.
I think that Jane Doe would have profited from Shawn’s advice. And some therapy.
“If you sign a bad contract while you are plastered, it’s invalid, but if you sign a bad contract because you made a bad decision, too bad.”
What level of “plastered” invalidates your contract (whether for sex or for something else)? And by plastered I mean able to walk and talk but wobbly. Impaired but not unconscious. For driving, we use a somewhat arbitrary (but objective) standard of BAC 0.08. Maybe we should have sex breathalyzers???
Commercial contracts typically get signed in offices during daylight business hours. So this problem isn’t too hard to handle. Agreements for sex occur late at night when one or both parties are significantly impaired. At some level of plastered, the conscious victim is able to consent and held responsible. But at some other level of conscious impairment not. And you are going to rely on some horny drunk dude to think to himself “What would Ryo do?”
And check out this new case, [People v Braslaw.](http://www.courts.ca.gov/opinions/documents/A138325.PDF) Mr. Braslaw was convicted of raping by intoxication of a woman who was very drunk, about as drunk as the Occidental woman. He appealed, saying that the jury should have been instructed that he should be acquitted because he reasonably believed she had consented. The appeals court slapped him down, saying that a reasonable belief that she had consented was not exculpatory. Rather, to be acquitted he needed to have had a reasonable belief that she was capable of consent. But the jury decided that she was not capable of consent and he had no reasonable belief that she was capable of consent.
tl;dr California courts are convicting people of rape by intoxication for raping people no drunker than Occidental’s Jane Doe. A California appeals court recently affirmed such a conviction. Occidental is well within their rights to expel someone for committing an offense the California justice system punishes with prison time.
I think a big problem is that there is no subjective test for when a person is too impaired to consent to sex. Clearly, a lot of posters think they would know it if they saw it–i.e., if the person was staggering or vomiting, for example. But this doesn’t provide a bright line–what is “staggering?” And what if different witnesses describe it differently? It’s a vague line, and I find that very problematic in a scheme based on the preponderance of the evidence.
“In California, which is where Occidental is, people are convicted of the crime of rape when the victim is very drunk but still conscious.”
Fang – this is the case everywhere. You can be very drunk, conscious, impaired and legally able to consent. You can also be very drunk, conscious, impaired and legally unable to consent. My point is that neither person is unconscious or (in my phrasing) incapacitated. One is just deemed legally incapable of consent.
Not always clear where that line is to a sober jury. Or to a drunk dude late at night.
This is not a problem that can be solved by more/better adjudication and Ryo hypotheticals. There’s many many many better things to focus on.
There’s no bright line. So what? There’s no bright line in lots of areas of life, but we manage, in our fallible way, to make decisions nevertheless. We draw lines, because we have to draw lines. And sometimes we’re in a gray area where it’s hard to make decisions. That’s life.
Should I hire this person? There’s no bright line. Some people are obvious hires, most people are obvious non-hires, some people are in the gray area.
Should I fire this person? Some people’s offenses are obviously worthy of termination. Some people are in that gray area of badness.
Should this paper get an A? Some papers are clearly superior, some are obviously inferior, some are on the borderline.
Should this student fail this class? Some students obviously deserve to pass, some clearly deserve to fail, a few are in that borderline area.
We have to draw lines, even when the lines are arbitrary and blurry. We need to make distinctions.
Moreover, moving the line doesn’t make it less blurry, it just means that the blurry area is somewhere else.
In the Braslaw case, the girl was “completely gone”. She did not voluntarily go with the guy or walk from her dorm to his room. She did not tell friends she was going to sleep with him. According to the roommate, that Jane Doe was essentially passed out in her bed. I would find that guy far more guilty than the Occidental guy, because he was the pursuer and was present when she was clearly completely out of it.
Should this person be put in prison? If we have a somewhat hazy line, one protection is to apply a more demanding standard of proof, like beyond a reasonable doubt. Also, we do things like employ professional judges, who give carefully worded charges to a jury.
Northwesty, in the documents I’ve read, including California appeals court cases, the capacity that “incapacitated” people are lacking in the context of rape is the capacity to legally consent, not the capacity to walk and talk.
Are we talking about Jane Doe or Braslaw’s victim?
If we’re talking about Jane Doe, I have said that provided the investigator determined that John Doe was incapacitated, and provided that John Doe accused Jane Doe or Occidental accused her on his behalf, she should have been disciplined for nonconsensual sex.