I’ll be slightly more nuanced here. If the rule specifies that a student cannot have sexual contact with another student who is incapacitated by alcohol, however the school defines that incapacitation, then the student should have some way of determining the other student is incapacitated. One way could be observing the student acting incapacitated, but another way could be watching the student consume enough alcohol so that, by the school’s definition, they are incapacitated.
That is to say, if Jason watches Dakota drink half a bottle of wine, Jason knows Dakota drank half a bottle of wine. Half a bottle of wine is not enough to produce the kind of incapacitation I would require to say that a sexual contact was an assault, but even if I thought it was enough, I would still not agree with punishing Jason if he had no way of knowing Dakota drank that amount.
I am certain, however, that some schools, doing bad analysis, punish accused students who had no way to know they were doing something prohibited. Schools should not do that. I hope that the better process the DOE is now proposing will make fewer schools guilty of such shoddy reasoning
If you replace incapacitated with intoxicated, then the student does have a way of determining that. A properly calibrated fuel cell based breathalyzer has a high degree of accuracy, when used properly.
But “intoxicated” doesn’t negate the ability to consent.
On the contrary, mildly to moderately inebriated people are far more likely to consent. As Ogden Nash once wrote, “Candy is dandy, but liquor is quicker.”
Alcohol reduces inhibitions. People do things drunk that they wouldn’t do sober. But that’s not the same as an inability to understand what is happening and to make choices.
Anyone who is intoxicated to the point of not being able to legally drive has their judgment substantially impaired. I find it bizarre that anyone would argue otherwise. Substantially impaired judgment does negate the ability to consent for many colleges.
@roethlisburger, I don’t even understand what you are saying here. Do you actually believe that colleges should forbid sex with someone who is above 0.08 BAC? Do you think people should get BAC receipts from breathalyzers to demonstrate that they didn’t assault someone? Or is this some kind of argument ad absurdum?
I’m with calmom here. Sometimes people drink and then make social choices they wouldn’t make when sober. IMO, colleges shouldn’t disallow that, because (1) it would be impossible and (2) it’s not a good idea anyway.
If I had a son who was about to be a freshman in college, I would be completely serious in telling him to buy a breathalyzer. I may not like the current rules, but that would be my advice as to how to operate in the existing environment. No, it’s not an argument ad absurdum.
When authorities attempt to regulate commonly accepted behavior, the end result is discriminatory enforcement of the rules. Rather than a consistently understood and accepted standard, you end up with a double standard - a combination of “everybody does it” with a small subset of people who get punished for it. And then that subset tends to be people who are unpopular or disliked in some way or another – it could be individuals who are members of a disfavored minority group, or it could be individuals who are disfavored for other reasons. Whatever the reason, the disparate enforcement of the rule makes them targets.
This has been the situation for decades for the broader laws about underage drinking.
Theoretically, there shouldn’t be a problem with frat parties at college campuses, or freshmen and sophomores getting even mildly intoxicated, because most of those students are under age 21 … so none should be drinking at all.
But the drinking is tolerated, except that sometimes, some kids get busted for underage drinking. The difference between those students and most of their classmates is simply that they got caught while the others didn’t.
I think it trivializes serious crimes when minor transgressions are treated as if they are the equivalent.
In the book “Girls and Sex”, many girls drink precisely so that they will be less inhibited, less present, or less responsible for their behavior. (The book explains why they are doing something theyre not comfortable with.) it’s often done with hard alcohol prior to going out, so not something potential partners could witness. Which is all to say that this only adds to the murkuness in some of these situations.
Ucbalumnus, I was that naive college freshman surprised to learn the punch had grain alcohol at my very first party after I had many glasses. I figured it out when the room started spinning. But even though I became quite drunk and surely legally over the BAC limit, I knew what I was doing, and who I was as a person, and what conduct I would permit. Less inhibited, yes, but I remained conscious, and could still say the word no, which was respected. Adults do have agency, even when inebriated.
Today at Costco, I saw a breathalyzer for under $100. It was right beside the tile-like finders in the automotive section at the end of the aisle. I believe it was about $20 or so, but not sure.
That’s the problem. Bad judgement doesn’t mean you can’t consent. Consent means you know what you are doing. Judgement is your doing it with the wrong person.
“You sure they wouldn’t just compete for high score?”
I’m sure some would, but those kids are already putting themselves in danger. But it might be a useful tool for a young person who wants to protect him or herself.
@Hanna I wondered, will any college accept a high profile case, a student with a high profile assault charges like Brock Turner? I know he has a conviction, but I wondered, is there any hope for him to have a normal life now and get into any college? I realize you may not want to weigh in on such a public case, but that particular case really concerned me a lot, because Brock was a freshman student, and the woman in question was older, and not a student. So do students have any protections at all, or once they commit an assault on a person that is unconscious , then life is over and that student can get a job as a kitchen worker or janitor? So can sex assault offenders ever go back to college?
Do universities have obligations to keep drunk outsiders off their campus, or do students need to be policing such things themselves, and avoiding all parties and getting drunk at all anymore?
The case frightened me on many levels because it seemed that it could have been consensual, but really no one could say did she say yes, and even the women herself could not remember what happened. The letter she wrote distorted the only important fact-- did she or did she not leave that party with him with the intention of having sex with him? It did not seem he dragged her out, but in the end he was expelled from college and has a rape charge, according to California laws and definitions of rape.
@Coloradomama I may be forgetting some of the details of the Brock Turner case but wasn’t the victim unconscious when he was having sex with her? Regardless of any previous consent given directly or implied, the fact that she was unconscious at the time he was having sex with her would be the critical point to that case. So I disagree with your statement that her letter distorted the “only important fact” - whether she left the party with him with the intention of having sex. Whether she left the party with the intention of having sex with him means nothing if prior to having sex she was unconscious. Perhaps there is some crazy argument to be made that if she was alert when the sex started but then became unconscious what crime would he be guilty of as it may not be reasonable for someone to realize that the person they are having sex with is no longer conscious? But even as I type that it sounds crazy.
I’m not sure students should have any more or less protections than any citizen when it comes to committing a crime. Many many individuals have lost their jobs and careers due to sexual assault allegations that are not yet even convictions. If they are not convicted of a crime and sent to jail, they will all have to figure out how to exist in this world.
" I may be forgetting some of the details of the Brock Turner case but wasn’t the victim unconscious when he was having sex with her?"
Yes. The two foreign students who caught Turner in the act of attempting to have sex with the victim testified that they thought the woman was actually dead. She was so completely unconscious the witnesses thought she was dead. Dead. (Worth repeating.)
I often disagree with @yourmomma, but we agree that if you voluntarily drink alcohol, and because of that voluntarily chosen drinking you become more uninhibited and your judgment gets worse, you can still consent to sex. If you don’t want to make bad decisions about sex, drink less.
You know when you can’t consent to sex, though? WHEN YOU’RE FREAKING UNCONSCIOUS.