People who are worried about gray areas should stay out of gray areas. There are gray areas in many aspects of our lives: we’d like bright lines, but we can’t always draw them. In point of fact, TV4, you’d have a gray area for incapacitation too-- you’d just put the gray area elsewhere. What about someone who is drifting in and out of consciousness? Incapacitated, or not? What about someone who is in between slurring/puking/stumbling (like the Oxy woman) and drifting in and out of consciousness-- incapacitated, or not? You have a gray area too.
I guess I am using the term incapacitation as it is defined in the English language, and not some nebulous interpretation.
From Miriam-Webster
I don’t call someone who is walking and properly spelling out text messages as someone who is disabled, or crippled, or immobilized, or paralyzed, or prostate.
I guess you do
From Cornell…
He or she may be unable to give consent…means he or she may be able to give consent.
Otherwise the quote would be… He or she is unable to give consent.
I agree completely, and I bet my definition of incapacitation is a lot closer to yours than you think (certainly closer to you than to others at either end of the spectrum).
In and out? absolutely incapacitated. 2nd example: absolutely incapacitated. If I had to take a guess I would say based on what I read that she was highly intoxicated during much of the encounter and then incapacitated at some point.
ETA- I am ALL ABOUT THE GREY AREAS. I think most of the disagreements I have had on here with you, DS, and others are about grey areas. I hate terms like “a victim is always at fault” or “a victim is never at fault”.
But, again, that is just my personal opinion. I think the distribution of people’s opinions probably is similar to a bell curve with any amount of alcohol being incapacitating at one end of the axis, and completely unresponsive at the other end. I would have no problem with putting the line somewhere under the bulk of those responses.
You do realize, I hope, that I can therefore argue just as effectively that
“Otherwise the quote would be…He or she is able give consent.”
I works both ways. Too nebulous for me, and I only quoted literally the first 4 entries that came up on a Google search.
If the schools wanted to expel students for drunk sex, the schools would say say we are expelling students for drunk sex.
Instead…the schools talk about expelling students in cases where one party does not consent.
This isn’t really that difficult to understand.
When is a person unable to consent? That area is a little more gray.
@TV4caster, haven’t you ever talked to a drunk person who still had the ability to say yes or no to sex? Haven’t you ever met somebody so drunk, he or she didn’t have the capability to say yes or no?
I remember I went to a bar with a few friends and one friend’s sister. The friend’s sister started dancing with me…rubbing her body on me…we weren’t on a dance floor. 
Her brother came over. She started rubbing her body all over him.
It was grotesque. No. She did not have the ability to consent. She wasn’t passed out.
She was also gay.
yes, my wife drinks 
yes, occasionally my wife after a big holiday party.
My guess is that in TV’s world she was able to consent. Being drunk and therefore uninhibited is not unable to give consent (in my opinion). I know a few people who do stuff like that while totally sober, and it is grotesque.
I have said it before and I will say it again. In my opinion the line is somewhere north of legally too drunk to drive but below semi-comatose. I would put it at “heavily intoxicated”. How do we define that without walking around with breathalyzers? Even then the differences in people based on identical BACs is staggering.
ETA- I say this half kiddingly but I know it when I see it. As someone who has experience both sides of the equation MANY, MANY times in my life I know it when I see it. Unfortunately I can’t be around for every encounter to sign off on it or not
Well, I was there. I don’t think she wanted to have sex with her brother…or me. 
If I had sex with her, and she said she was unable to give consent, I think I would have been in trouble.
The schools make the ultimate decisions so you don’t have to worry.
I’m confused, then. What’s your problem with the Occidental verdict? The Oxy woman was, by the account of many witnesses, slurring her words and stumbling. As she was walking from her room to the guy’s room, she puked twice-- an RA witnessed this, and IIRC, he held her hair out of the way. Most people would say without hesitation that she was heavily intoxicated. She said she wanted sex, but she was indisputably heavily intoxicated.
No one should do that for any reason…first of all, the consent might not be considered legitimate, and second, it’s just gross. But I want to make sure I understand this…If it is a guy who is stumbling, puking and slurring, and a girl proceeds to have sex with him, then technically she is raping him, correct?
Yes, and also she shouldn’t do it because it’s just gross.
I can imagine a scenario where perhaps a girl has had a crush on a guy for a while, but he hasn’t shown any interest. Then they end up at the same party and start chatting and actually getting along, while they are both super drunk. She suspects that his newfound attention is mostly due to “beer goggles” and being drunk, but she is still happy at the turn of events. By the time they get around to business, he is thoroughly wasted, but she figures this may be her only chance with him, so she continues the less-than-ideal interaction. Technically this is rape, right? Because he is too wasted to give real consent.
Having sex with people who can’t consent is rape. Not “technically” rape. Rape.
There are several salient points here. First, a judge did not make the decision. A lawyer picked by Occidental made the decision. BIG difference.
First of all, you are right in the last paragraph (which I didn’t quote because I wasn’t going to address that) where you said something to the effect of “do you feel lucky having sex with a woman like this?” I agree. You also said “do you want to take a chance having sex with someone like that?” Nope, I agree with you.
Now, let’s address some aspects of what I did quote. I don’t know if many of you have had many experiences with getting this drunk, but I have had hundreds. I have been wasted many times and been with wasted people many times (especially over the last 16 years since I gave up drinking).
There were plenty of times where I was highly intoxicated and did stupid stuff. I once jumped off a 2nd story roof into the shallow end of a pool which was probably about 30 ft out from the wall of the house. I once drove with my lights off on a windy country road with a .12 BAC to prove to a friend how highly functional I was. I am not proud of these events (and many others like them) but I bring them up to show that I know all about heavy, heavy drinking and the ability to make decisions or not. I’m actually quite glad, by the way, that I got the DUI because it was the ASAP program that got me started on the path of realizing that I was on the way to being an alcoholic.
There were plenty of times where I passed out. There were plenty of times where I didn’t remember what I did the next day. Speaking of which: if you can remember the next day what you did you weren’t incapacitated (at least in my opinion), you were highly intoxicated. I say that based only on my extensive experience with the decisions I made while in both conditions.
I also want to comment about throwing up and whether that indicates being incapacitated. I once set the record for my dorm (and according to legend, the entire campus) when I drank 1-1.5 ounces of beer (a shot) every minute for almost 200 minutes. That is between 16 and 24 beers in 3 hours. I then threw up. Because I threw up, I functioned perfectly the rest of the night and was highly intoxicated, but not incapacitated. I remember everything I did the entire night. I bring that up because as anyone knows who has thrown up after drinking heavily, there are many times where you get a 2nd wind and are more sober after getting sick. So to me the Occidental girl getting sick means nothing. In fact it might tip the scales toward believing that she was not super drunk after she did that.
I just read a story about the case which raises some questions that I don’t think we have fully addressed. I will post that link in a later post so that more people see it.
In it, it mentions that the transcripts of the investigation show that Jane Doe admitted to remembering conversations that occurred while she was supposedly incapacitated. I can tell you that someone who is completely wasted can’t remember the next day what happened the previous night.
There is also a complete list off all the texts between John and Jane with misspellings etc included. What surprised me is that there are no misspellings in the texts from Jane and only a slight error or two from John from the texts that were sent minutes before she went back to his room for the final time. There is no way someone texts that clearly and precisely who is not in complete control of their bodies (or whatever the definition is about incapacitation).
The article is pretty long (like this post) but it is well worth the read not matter what your opinions. By basing the article off the transcripts the author lists the facts of the case, and not their own suppositions.
Interesting. One problem, is many of these kids are intentionally or accidentally putting themselves in that position (too wasted to consent) by drinking so much. So they really should not be having sex with each other at all, under those conditions. And yet that is exactly what they do…it’s one of the main purposes of the drinking and the parties - “hooking up.” So really their whole college culture is ridiculously dysfunctional to the point that 20% of females feel violated within the first year at college, and I bet a huge percentage of guys don’t feel great about all their encounters either. I can’t say I’m super impressed with the whole system at this point. And I feel really bad for the girls and the boys. 
http://www.esquire.com/news-politics/a33751/occidental-justice-case/
An in-depth article on the Occidental case including some facts from the transcripts of the investigation that I had not read before.
Do we know of any cases where a woman has been convicted of rape against a man solely on the basis on him being too drunk to consent? I remember talk of a few where guys have been raped by being drugged with a date rape drug or simply tied up, etc, but off the top of my head I do not remember any cases of a guy being too drunk (which doesn’t mean there aren’t any, and I will try to look it up).
By “judge,” I meant the external adjudicator judging the case. But you are correct that she was not a governmental judge.
I can’t speak to your experience, but Occidental Jane Doe says she didn’t remember the sex.
How many cases do we know of where a woman has been ACCUSED of rape on the basis of him being too drunk to consent? If there are no accusations, there can be no convictions.