The Missing Key to Fighting College Sexual Assault: Defining When Sex With a Drunk Person Is a Crime

The law, lawyers, and the court.
May 8 2014 3:28 PM

The Missing Key to Fighting Sexual Assault on Campus

Universities must make clear when having sex with a drunk person is a crime.

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How intoxicated is too intoxicated to consent?

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Last week, the White House made recommendations for strengthening how colleges respond to sexual assault but failed to tackle the elephant in the room: the connection between alcohol use and rape. If colleges are to reduce the incidence of campus sexual assault, they must have guidelines about when it is a crime to have sex with a person who is drunk. These rules need to be clear to students and to police or administrators who investigate these allegations and decide whether to impose punishment.

The key is to make clear exactly when it is a crime to have sex with a person who is too intoxicated to be capable of giving meaningful consent. Here’s the proper legal framework: Sex with someone who is too drunk to consent is a crime even if the perpetrator uses no violence whatsoever to force his way. It is a crime even if the survivor does not physically resist or verbally object. It is a crime even if she is not passed out but is conscious before and during the encounter. It is a crime even if she was not drugged or forced or tricked into drinking by the perpetrator but got drunk on her own.

How intoxicated is too intoxicated to consent? After all, many people have sex under the influence of alcohol. The tipsy hookup may be the norm on college campuses. If the perpetrator didn’t use physical violence and the victim didn’t resist him, how can we be sure that the drunken sex was not consensual?

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When it comes to drunk driving, the criminal law decrees that people are incapable of driving safely if they exceed a universal blood alcohol level. There’s no similar line for determining when someone is too drunk to consent to sex. Instead, the question is whether, under all the circumstances apparent to the perpetrator, a reasonable person would know that the victim was too intoxicated to give a meaningful consent. Under that standard, the prosecution may win a conviction only by proving that the victim’s intoxication was extreme and verifiable. She has to be way past buzzed or tipsy. She has to be very drunk.

The cases and the literature on rape give examples. For example, a person who is falling-down drunk, too intoxicated to walk. Or unable to talk clearly or coherently. Or too uncoordinated to undress herself. Or sick drunk, slumped over a toilet vomiting or urinating on herself. 

In conditions like these, there’s just no possibility of meaningful consent. College administrators should tell students directly that, if they run into someone who is in this state, the right thing to do is to help that person find his or her way home. If a student instead decides to have sex with the intoxicated person, he is committing a crime under the law of most states, as well as violating his campus conduct code. 

Perhaps because it is illegal for the vast majority of their students to drink in the first place, many colleges do a poor job of explaining the kinds of circumstances in which it is unreasonable to believe that a drunk person is consenting. Some schools tend to issue sweeping warnings, such as: “Never mix drinking with sex.”   

This sort of vague preaching is worse than useless. It fails to tell potential perpetrators when they are on the verge of crossing the line. And it may falsely suggest to potential victims that the law protects them against virtually all kinds of intoxicated sex, when it does not. For now, most cases of drunken sex will be—and, probably, should be—beyond the reach of the law. Young women need to know this. They need to know that the law treats sex after drinking as assault only in extreme circumstances.

Colleges also must have guidelines for dealing with cases in which both parties were drunk. Here, men are likely to object that they are being disadvantaged by a double standard that lets drunk women, but not drunk men, off the hook for having sex. But this objection rests on a fundamental misapprehension about the role that intoxication plays in attributing criminal responsibility. Intoxication almost never is an excuse for committing a crime. Otherwise, we would be giving drunk people—who, by the way, commit a lot of violent crimes—a get-out-of-jail-free card. Instead, for rape as for other crimes, an offender is guilty if he commits an act that’s an extreme departure from the standard of care followed by reasonable people in the community. The crucial point is that this standard of care is based on the perspective of a sober “reasonable person,” not a drunk one.

It’s just as important to make clear that an offender never gets off the hook because his victim happened to be drunk. “We were both totally out of it” is just not a defense. It would be unthinkable—wouldn’t it?—to acquit killers, kidnapers, or thieves for this reason. There is no reason on earth to single out rapists for special treatment. To the contrary, perpetrators who target the most vulnerable victims are more, rather than less, culpable in the eyes of the criminal law.

There is one more objection that we often hear: What if the man says that he was so drunk that he also was incapable of consenting? Could it be that she raped him or that they raped each other? It is not clear how plausible this scenario really is. If both people are too drunk to walk or are vomiting all over the place, it seems likely that sex just won’t happen. 

While a new study reports that men say they’ve been raped at a surprisingly high rate and that women are sometimes the perpetrators, men tend not to bring sexual assault complaints. If men do start coming forward, the authorities should evaluate their accusations under the same standards applied to cases involving female complainants.

In remarks about the White House recommendations, Vice President Joe Biden reminded the audience that “no man has a right ever to raise his hand to a woman. Period. End of story. It is assault if they do.” But many sexual assaults, on college campuses and off, don’t involve a lot of violence. Instead, they involve a lot of alcohol and one person taking advantage of another who is too drunk to consent. That, too, is assault if they do. Period.

Kathleen A. Bogle is a sociology and criminal justice professor. professor at La Salle University and the author of Hooking Up: Sex, Dating and Relationships on Campus

Anne M. Coughlin is a law professor at the University of Virginia. 

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