Jane and John met in their first week as undergrads at Occidental College. They enrolled in the same freshman seminar, chatted on a field trip, pregamed for a school dance together, and then—on a night when they both claim they were more intoxicated than they had ever been before—they had sex.
According to documents filed in Los Angeles Superior Court last year—which include text message records, witness statements, a police report, and Occidental disciplinary notes—on Sept. 7, 2013, Jane was downing vodka and orange juice while playing drinking games in a friend’s dorm room. John was goaded into chugging booze straight from the bottle in a ritualistic hazing by his new water polo team. “I’m wasted … the worlds moving,” Jane would text her friends that night. “So drunk. Jesus fucking Christ … about to blak out,” John would text his. When John made it back to his dorm, he launched a dance party in his room, and Jane stumbled in.
According to witnesses, who would be asked to recount the night’s events after Jane filed a sexual misconduct claim against John with the school, Jane “was grabbing John and trying to kiss him”; John was “somewhat responsive” but “seemed pretty indifferent.” But he was also “loud, obnoxious, kind of pushing everyone, going nuts a bit,” slurring his words, and at one point, attempted to move everyone but Jane out of the room. Eventually, both Jane and John removed their own shirts while dancing. When Jane ended up lying on top of John on his bed and grinding her hips on him, a couple of her friends pulled her away and tried to lead her back to her own bed. She was “a little upset and indignant,” one of them reported, but agreed to return to her room.
She wouldn’t stay there. “The second that you’re away from them, come back,” John texted Jane. “Okay,” she replied. “Do you have a condom?” she texted. “Yes,” he said. 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). When another student knocked on the door to ask if Jane was OK, she responded affirmatively three times. Later, another student opened the door and saw them having sex. According to investigators, this witness “had attended sexual assault prevention training during orientation, and had been told what to do if he witnessed a sexual assault.” So he closed the door and let John and Jane continue, because, he told investigators, “This didn’t look like one to me.”
Occidental College disagreed. The morning after the incident, both Jane and John said they didn’t remember what happened the night before and set about recreating the evening’s events by speaking with friends who witnessed them having sex, reviewing text messages they had sent to each other, and piecing together the physical clues. John awoke to find a used condom and Jane’s earrings in his room; Jane learned that after having sex with John, she had ventured out again to find another man to cuddle with. The facts of what happened that evening are not in dispute. But, a week after the incident, Jane filed a complaint against John with the school. John was ultimately found in violation of Occidental’s sexual misconduct policy, which forbids students from having sexual contact with anyone who is “incapacitated” by drugs or alcohol. John was expelled, the harshest possible punishment for students found responsible for sexual assault on campus. Then, he filed suit against Occidental, alleging that the school unfairly applied its sexual misconduct policy based on gender. (The suit refers to the students as just John Doe and Jane Doe, to preserve their anonymity.) As the lawsuit puts it: “John is being expelled because he is male; Jane Doe is not because she is female.”
How drunk is too drunk to have sex? That’s a question that colleges around the country are grappling with in an attempt to combat sexual assault on campus, comply with Title IX, and fend off scrutiny from anti-rape activists and the Obama administration. But when the White House released guidelines last year to help schools address the problem of campus rape, it did not mention the role of alcohol in college sexual encounters. Nor has it clarified the issue in its many celebrity-studded public service announcements. It’s clear to all reasonable people that it’s cool for two sober men and/or women to enthusiastically consent to sex and that when one person is unconscious, that’s assault. But there is an ambiguous middle ground between clear-eyed sober and passed-out drunk where one or both parties may become too intoxicated to meaningfully consent to sex, and schools have now been tasked with discerning that line for themselves. In doing so, they’ve been forced to confront a host of philosophical, moral, physiological, and practical questions—none of which have easy answers.
Last year, my colleague Emily Yoffe recounted the Occidental case in a piece arguing that college sexual assault disciplinary processes infringe on the civil rights of men. Yoffe recommended that campus rape cases ought to be handled by police and prosecutors, and that schools could do their part by attempting to reduce binge drinking. I don’t view the issue exactly the same way, but I do think that certain university policies around drinking and sex do a disservice to students by redefining the sexual assault of women to include “sex while drunk,” and creating a double standard for men.
It’s politically expedient to claim that there’s a clear line between consensual sex and rape, but the truth is that in cases where a victim’s intoxication is the sole indication that an assault has occurred, the distinction is hard to draw. I’m not talking about “gray rape,” the term Laura Sessions Stepp weirdly coined in Cosmopolitan in 2007 to refer to incidents that are clearly rape but that victims refuse to label as such out of shame, self-blame, or coercion. I’m also not calling back to that old “he said, she said” trope, whereby rape charges are hard to stick because one party alleges that she didn’t consent to sexual activity and the other asserts that she totally wanted it. And I’m not raising the specter of false accusations, the rare phenomenon in which a vengeful woman “cries rape” after engaging in consensual sex (or no sexual activity at all). I’m talking about having sex when you’re super wasted, and maybe the other person is too—cases like the Occidental one, where someone is capable of actively going through the motions of sex and even verbally (and textually) consenting to it but is so drunk that their decision-making ability is possibly impaired. Despite universities’ moves to punish drunk sex, it’s simply not always clear when it’s OK to have sex with people when you, or they, or both of you have been drinking.
When I asked a dozen college students around the country to draw their own lines between drunken sex and sexual assault, I got 12 different answers. One male senior at Florida State University told me, “The only absolute line should be if the victim is completely unresponsive”; a female senior at FSU said, “The level should be at totally sober.” A woman at the University of Chicago said that “any level of intoxication where someone won’t remember their decisions is a clear-cut criminal act” while a male FSU student countered that “I don’t think it’s OK for the drunken male to be threatened with charges if, during the moment, she reciprocated the action.” A female senior at Grinnell College told me that it’s better for both parties to be equally intoxicated: “I think that both people should be at the same level of (un)drunkenness for things to be OK—if you’re tipsy, then I should be tipsy; if you’re sober, then I should definitely not be drunk.” A male senior at FSU agreed, saying, “If one person is drunk and the other is sober, that is not OK. That’s taking advantage of a situation in a way that I would argue as being rape. Two people being equally drunk is different, in my opinion. Most people would probably regret that particular decision, but it’s hard for me to define that as rape.”
Most colleges don’t have “rape” policies—they have “sexual misconduct” policies, outlawing a wide range of nonconsensual activities in a way that may or may not match up with local laws. Florida State University, for example, defines “sexual misconduct” as “Any sexual act that occurs without the consent of the victim, or that occurs when the victim is unable to give consent,” including situations in which a person is “under the influence of alcohol, drugs or other substances (including but not limited to prescribed medications).” Beloit College “requires a non-intoxicated, verbal, mutually understood ‘Yes’ for sexual contact or intercourse to be considered consensual.” Those are pretty broad definitions, given that, for instance, a huge number of FSU students are likely to be under the influence of alcohol, drugs, or prescribed medications during sex. So, many schools, like Occidental, have adopted a higher threshold, forbidding sexual contact, including kissing, oral sex, and intercourse, with anyone who is “incapacitated.”
That’s the line favored by Brett Sokolow, the man who’s emerged as the country’s leading consultant on campus rape adjudications. Sokolow, president and CEO of the risk management firm the NCHERM Group, is the guy that schools call when they need to figure out how to comply with Title IX and fend off civil rights lawsuits from students. “Incapacitation is a state beyond drunkenness or intoxication,” Sokolow wrote in a 2005 report, which served as an early guidepost for colleges before the White House began drafting letters on the topic; schools like Whitman College, the University of Virginia, and the College of William & Mary have since cited Sokolow in drafting their incapacitation language. Sokolow proposed that universities adopt a technical definition of incapacitation as “an inability to make a rational, reasonable judgment or appreciate the consequences of your decisions,” and many institutions have come in line. Sokolow also proposed a “common-sense definition” of the term: the inability to “understand Who, What, When, Where, Why and How with respect to that sexual activity.” While the state of incapacitation looks different in different people, Sokolow said that it’s often evidenced by “slurred speech, bloodshot eyes, the smell of alcohol on the breath, shaky equilibrium, vomiting,” and “outrageous or unusual behavior.” According to Sokolow’s report, “If someone is experiencing a blackout, they are incapacitated and cannot give consent.”
Notably, the “yes means yes” mantra, which has gained traction at schools around the country, does not apply in these cases. As Sokolow’s report puts it, a student “could be stark naked, demanding sex, but if they are incapacitated at the time, and that is known or knowable to the accused, any sexual activity that takes place is misconduct, and any factual consent that may have been expressed is IRRELEVANT.” (The report claims that “incapacity rules are not gender-specific, so that anyone who has sex with an incapacitated person can be held responsible, regardless of whether the situation is male-on-female, female-on-male, male-on-male or female-on-female,” but the report uses “the pronouns of the usual suspects”—he’s the rapist, she’s the victim—“for convenience.”) Even if an incapacitated party is the sexual aggressor in an encounter, she is still the victim: “Too many incapacity inquiries become mired in ‘but she came on to him,’ ” Sokolow’s report states. “It does not matter.”
And what if both parties are too drunk to consent? Occidental’s John and Jane both claim that they blacked out during their encounter—incapacitated, by Sokolow’s standard. But proponents of the incapacitation rule contend that the situation is so unlikely that it’s not worth considering at length. “Arguing that ‘he was drunk too’ doesn’t function to excuse the misconduct, especially since it is almost always disingenuous,” Sokolow wrote in his report. “How would two genuinely incapacitated people have the physical coordination necessary for sexual intercourse?”
Last month, two ex–Vanderbilt University football players attempted to claim that they should not be held responsible for raping an unconscious woman because they were too drunk to know what they were doing at the time. They were convicted of four counts of aggravated rape each. Good. Being drunk is not an excuse for raping another person. “If you’re blackout drunk, and you harm someone, does that make it less bad? Are you less culpable? No,” says Laura Dunn, founder and executive director of SurvJustice, a nonprofit that advocates for sexual assault survivors. “You don’t get an accidental rape for free.”
But in cases like the Occidental one, where both parties are going through the motions and saying the words of enthusiastically consenting to sex, the incapacitation standard presents a legitimate paradox: Once she filed a report, Jane’s incapacitation became the sole evidence that she had been victimized, and yet John’s incapacitation could not be used as a defense. According to Occidental’s sexual misconduct standard, Jane was too drunk to consent to sex because she lacked “awareness of consequences,” the “ability to make informed judgments,” and the “capacity to appreciate the nature and the quality of the act.” Meanwhile, John was held responsible because he “knew or should have known” Jane was incapacitated—a calculation that’s based on what a sober person would have known in his circumstances.
In order to resolve those contradictions, some people are comfortable assuming that the man is at fault. In a 2004 article on common legal approaches to intoxicated sexual encounters, the California Western Law Review’s Valerie Ryan noted that “the justification for demanding that men assume the greater legal burden and be held responsible when there is an allegation of rape may be that, in almost all cases of rape, women are the victims and men are the perpetrators.” But while it’s true that most sexual predators are men, that doesn’t mean that most men are sexual predators. Colleges are under so much pressure to rid their campuses of the true predators (and rightfully so) that some are relying on a very broad standard. When a male student who had been expelled by Duke University for violating its sexual misconduct policy sued the university last year, Duke dean Sue Wasiolek testified that in cases where both parties are drunk, “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”
On other campuses, the double standard goes unstated. Last year, BuzzFeed’s Katie J.M. Baker spoke with a male student who was found responsible for sexual misconduct at an Ivy League school after—according to multiple witness accounts—he drunkenly made out with a female student, who was also drunk. When the female student woke up the next day with no recollection of what had happened the night before, she contacted school officials and local police and submitted to a forensic examination to determine if she had been raped; the rape kit showed no signs of assault, but the male student was suspended for a year. The student didn’t blame the woman for initiating an investigation against him—“That doesn’t strike me as an easy accusation to make,” he told Baker—but he does fault the school for finding him responsible. “They couldn’t prove that I wasn’t just as drunk,” he said. “So why was the burden of consent immediately assigned to me instead of her?” And after a male student at the College of Holy Cross was accused of sexual misconduct for having sex with an incapacitated woman in 2011, he sued the school, contending that she was merely intoxicated and that the school had overstated her level of drunkenness due to her gender.
Sokolow argues that the onus being put on men is not about gender bias, but about anatomy. His report says that “courts operate on the presumption that if a man is able to engage in and complete the act of sexual intercourse, he is not incapacitated.” Or as Dunn put it: “People who are truly incapacitated can’t get erections.” That’s an assumption that dates back to Shakespeare, but it’s not backed up by modern science. “It’s true that orgasm is impaired in both sexes” when people drink, says Dr. George Koob, director of the National Institute on Alcohol Abuse and Alcoholism. “With even tiny levels of alcohol,” sexual response “slows down, and delays, and sometimes goes completely.” But Koob also cautioned that there’s no absolute line past which all men are incapable of having an erection and that a total loss of sexual function is less likely for young men, the ones who are implicated in most campus sexual assault disputes.
Another factor schools use to determine who is the aggressor and who is the victim in a drunk and ambiguous situation: logistics. “Someone’s initiating the act,” Dunn told me. “Someone is choosing either to insert themselves, or to sit on top, or otherwise force that insertion, and the initiator is the one who has the responsibility to obtain consent.” Harvard University uses this standard; the website of its Office of Sexual Assault Prevention & Response tells students that when both parties are equally intoxicated, “the person who initiates the sexual act is at fault. After all, if you’re both blackout and you sit next to each other all night, nothing bad has happened. But if a sexual assault occurs, someone initiated it and that person is at fault.”
In some cases, the instigator is clear. But in cases like Jane and John’s, where both parties were actively consenting to sex in the moment but one party later argues that her consent was not valid, there can be several “initiation” points during the encounter, each instigated by a different person. Witnesses at Occidental said that Jane grabbed and kissed John; that later Jane mounted him, clothed, on the bed, and grinded her hips on his; that she performed oral sex on him; and that they had sex in a missionary position. Assigning blame based exclusively on who inserted the penis, or which party was on top, risks reframing the most common heterosexual sexual position as an inherent violation. And it’s worth noting that it’s not just intercourse that’s regulated on most campuses. “Sexual misconduct” often covers nonconsensual kissing, groping, or digital penetration, too. So any number of “initiations”—some instigated by Janes, others by Johns—could be framed as assaults.
There’s another reason that men are generally held to a higher standard during drunken sexual encounters, and it concerns the mind, not the body. In cases that involve drunk sex, even the people involved in the case are not basing their complaints on how they felt at the time—they are basing it on how they felt after. According to a report produced by investigators hired by the school, Jane ultimately decided to take the incident to Occidental when she began experiencing “emotional difficulties” in the evening’s wake. She “had difficulty concentrating, and would often ‘zone out’ for five or ten minutes at a time.” She experienced “nightmares, and intrusive thoughts.” The prospect of running into John frightened her, and when she actually saw him, she became nauseous for hours. Meanwhile, John seemed fine. According to the report, Jane “noted that he attended his classes without difficulty, and she ‘saw that he wasn’t fazed by what had happened at all.’ ”
Because Jane blacked out on the night of Sept. 7, 2013, she doesn’t remember how she felt as the events unfolded—just how she felt before and after. “The thing is I have no clue what I was thinking,” Jane later told investigators. “I would never have done that if I had been sober. … I don’t know what was going through my head." Before that night, Jane had never had sex. She told investigators that as a “hopeless romantic,” she had hoped her first time would be different.
John, too, woke up feeling bad about what had happened the night before, but he expressed his upset feelings differently than Jane did. “I’m borderline furious with myself,” he later texted a friend. “I really need to get my head on straight and stop abusing my freedom.” After he and Jane met up to talk about the events of the evening, John texted her, “I was blackout drunk but I still feel terrible about what happened. I’m so sorry that everything happened this way, I wish it was more special for you.” While John’s friends advised him that he had made a mistake, Jane’s friends and an Occidental adviser counseled her that her experience was consistent with rape. So she filed a complaint.
It’s understandable that schools would consider how certain sexual encounters make students feel. After all, consent hinges on a person’s feelings toward a certain sexual experience with a certain person in a certain moment, and rape is regarded as such a serious crime because of how traumatizing a violation it can be for the victim. And, in very real ways, women still bear more consequences from sex than men do, in the form of unplanned pregnancies, sexually transmitted diseases (which transmit more easily to the receptive partner), and social stigmas, which cast women as sluts and men as studs. But ultimately, there is a limit to how strongly a person’s feelings should factor into these university decisions about who should get to stay on campus and who has to go. A person can be traumatized by an experience that is not criminal, and be unaffected by an experience that is. Harvard’s Office of Sexual Assault Prevention & Response rightly informs student that “Even if someone isn’t traumatized by a sexual encounter that could be considered rape, that does not justify the actions of the perpetrator.” But in most cases across the country, only students who feel traumatized actually report. The result? Some mutually drunken sexual encounters end in disciplinary action for just one party.
So what should schools do? Perhaps Sokolow is right, and the concept of mutual incapacitation is so out of the ordinary that it’s unnecessary to mold policy to address it. (“In nine years, I have NEVER seen a true case of mutual incapacity,” Sokolow wrote in his report. “I don’t doubt it exists, but it is very rare.”) But the ambiguity of the college standard is still a problem. Saunie Schuster, a partner with Sokolow’s NCHERM Group, told me that alcohol plays a significant role in more than half of the college cases she’s seen. Schools need to figure out a process for dealing with them that holds up to scrutiny, even in extreme circumstances.
Part of the calculation will require schools to puzzle out when students ought to be expelled for an alcohol-related policy violation, and why. The colleges that outlaw sex between students who are simply “drunk” or “intoxicated” are setting an impossible standard that pathologizes many normal, healthy, consensual sexual encounters. Those policies risk denying a huge number of students a college education, and they do nothing to helpfully instruct young people on what meaningful consent really looks like. It appears that Sokolow agrees: In May, he wrote a newsletter cautioning schools not to discipline men for simply engaging in “drunken sex.” When it comes to incapacitation, however, schools probably do have an interest in deterring students from having sex, because of the heightened risk of that situation leading to harm or facilitating abuse. Alcohol, after all, is a trusted tool for rapists: In a paper published last year in the Journal of Interpersonal Violence, Louisiana State University sociologist Amanda Cowley noted that men act more aggressively under the influence while “women may be likely to miss cues of danger” from predators while drinking, and that their intoxication can contribute to the “physical inability of the victim to resist an assault.” And even in a nonpredatory situation like John and Jane’s encounter, if it ends in distress for both parties, it makes sense for the school to get involved on some level. But that doesn’t have to mean expulsion.
When Sokolow brushed off the prospect of two incapacitated students assaulting one another in his report, he asked sardonically, “If [the man] really felt victimized, why didn’t he make a complaint?” Justin Brown, a Stanford University senior who alleges he was nonconsensually kissed and groped by a female student after both parties had been drinking, answered that question in an op-ed in the Stanford Daily last month. “I don’t believe she had any especially malicious intent during the incident,” Brown wrote. “She deserves to be educated about her mistakes, but this education remains unavailable to her as a result of the punitive approach” proposed by Stanford, which demands a “strong presumption in favor of expulsion” for violations of the sexual misconduct policy. In a paper published in Trauma, Violence, & Abuse last year, University of Arizona professor Mary Koss argued that schools ought to consider adopting restorative justice measures—like mediation, monitoring of students, and community service—in order to better address the “40 distinct forms of sexual misconduct” outlawed by universities as well as the obvious “variation among students and their situations.”
Expulsion, meanwhile, can be saved for the punishment of true predators. To help distinguish predation from mistake, schools could take a page from the American Prosecutors Research Institute guide, which acknowledges that sexual assault cases involving alcohol are more difficult to tease out because the victim’s memory is often compromised and because juries—like the college students I spoke to—aren’t clear on how to distinguish between drunken sex and rape. So it advises prosecutors to focus their inquiry on the defendant’s behavior and make nuanced calculations to establish that he is “a predator” as opposed to “just a drunk guy who did not intentionally rape anyone.” Signals of predation include following the victim to bed after they go to sleep, taking measures to “control the situation to overcome the victim’s will,” isolating the victim, lying to the victim, encouraging the victim to get drunk, taking measures to select “an easy target” to victimize, and exhibiting a history of similar behaviors. Separating the predators from the legitimately confused won’t be easy, but it’s a distinction that needs to be an essential part of schools’ disciplinary processes.
One female student at the University of Chicago I spoke to declined to draw the line between drunken sex and rape, saying she’s not interested in setting up a paradigm where some students can “squeak in just shy of sexual assault.” But schools across the country are drawing lines, at every disciplinary hearing, and their standards are causing confusion in the student body—and also, at times, excessive and unfair punishments.
Schools need to do a better job of communicating their standards to students, whatever they are. Right now, many colleges decline to get into the nitty-gritty about what exactly constitutes a violation of the sexual misconduct policy when alcohol is flowing. While many of the students I spoke with said their campuses outlined best practices (like escorting a person home and not pursuing sex with them if they seem drunk), few outlined exactly which behaviors would get students expelled. Harvard’s Office of Sexual Assault Prevention & Response acknowledges that it “can be frustrating” that “there is no legal bright line past which someone is too drunk to consent,” then just tells students to “play it safe. If you believe the person you are with may not be in their full capacity, wait to have sex with them—even if it’s just until the next morning.”
Some schools are trying to avoid ambiguous sexual encounters altogether by reducing the student body’s drunkenness, or at least curbing contact between male and female students when they’re wasted. Last month, Dartmouth College banned hard alcohol on campus, and national sorority chapters instructed members at UVA to refrain from attending social events on campus during fraternity rush, with some sorority houses scheduling mandatory “retreats” during rush week to keep the women away from the drunk men. It’s understandable for schools to attempt to crack down on alcohol on campus—booze contributes to a number of dangerous scenarios among underage people—but keeping women sequestered in their homes while the men imbibe is just silly. Young people are going to find a way to drink alcohol, and to have sex with one another. Colleges need to find a way to mold policies that can be applied consistently to men and women, help students cope with traumatic experiences as they embark on adulthood, punish the sexual offenders in their midst, and acknowledge that not all drunk sex is assault.