[thaumasiotes]

As made explicit in the sexual assault policies of various US universities, a female is unable to consent if she's had any alcohol (the "1 beer" model of being drunk). It is not a defense, or grounds for a counterclaim, that the male might have been equally or more drunk. (I say made explicit; the "any alcohol" threshold is what's made explicit. The wording of formal policies is generally scrupulously gender-neutral, but their application isn't.)

In an actual US criminal court, I believe drunken consent is no different from any other consent.

[ZeroGravitas]

As much as I'd love to take your word on this, for me this still falls into the "they banned Christmas because of the Muslims" category of made up propaganda intended to enrage the more credulous (see the other reply for a demonstration of this).

I asked for evidence on this once before on HN, and they came up with two links. Both referred to the exact same case. And that case involved two people so drunk that neither could actually recall what happened.

That person at least provided links (admittedly they actually undermined his claims, but still). You've provided nothing but a bold assertion.

My suggestion to you and the original poster: if what you claim is true, is actually true, then a) stop using the word "drunk" as it is ambiguous, use the phrase "after one alcoholic drink", as this massively bolsters your case that the policy is ill-thought out b) have a link from a reputable source that actually backs up the reality of what you claim since on the face of it you'd expect a bigger fuss to have been made about this if it was true (much like I'd have heard about it via standard channels, not forwarded emails from racist uncles, if someone had actually banned Christmas because of the Muslims).

Edit: here's the first policy my Googling returned, it all seems very reasonable to me:

https://share.cornell.edu/education-engagement/sex-alcohol-a...

Key phrases: "drinking heavily", "highly intoxicated" and so on.

[arkades]

I can only offer myself up as an anecdote, but:

I was at grad school at Boston University in the very, very recent past and was lectured on the fact(?) that even a single alcoholic beverage precludes consent during their mandatory Title 9 intro. I can't find any thing regarding their sexual assault policies (other than "we do not allow or condone sexual assault") on their website, though.

[thaumasiotes]

> their mandatory Title 9 intro

I remember the announcement of a "mandatory meeting" for everyone in the dorm shortly after I moved in freshman year. I was intrigued by this concept and asked what would happen if I didn't go. The answer was, "nothing, but we'd like you to be there".

"Mandatory" appears to be experiencing some semantic slippage.

[Grishnakh]

If a single alcoholic beverage precludes consent, then what if both parties have had at least one drink? How can that possibly be rape? If it is, then that's sexism, because it's a double standard: they're claiming the woman isn't responsible for her decisions while intoxicated, while the man is.

[bitwize]

Under law, if neither party can give consent then each of them is guilty of rape of the other. The age of consent in New York State is 17, but the age of culpability for statutory rape is 16; if two 16-year-olds have sex, they raped each other under New York law.

But the way human social dynamics works is that in most cases, the male initiates sexual activity to which the female has right of refusal. So in cases of heterosexual liaisons where neither party is capable of consenting, the female -- who 90% of the time is the only one put in a position of consenting or refusing -- will not be prosecuted or disciplined, while the male will be.

[Grishnakh]

>So in cases of heterosexual liaisons where neither party is capable of consenting, the female -- who 90% of the time is the only one put in a position of consenting or refusing -- will not be prosecuted or disciplined, while the male will be.

Right, and I'm pointing out that this is blatantly sexist and discriminatory.

[chris_wot]

You were advised badly then. Imagine, if you will, that the other party drank a Tourtell beer. That's hardly going to do anything, the beer has 0.4% ABV!

[thaumasiotes]

Here, as mainstream as media channels get: http://www.slate.com/articles/double_x/doublex/2014/12/colle...

Relevant points include: (1) some schools' policies are worded so as to "lead to a young man being found responsible for a sexual offense simply if the complainant establishes that she had any degree of intoxication"; and (2) even where the policy would appear to be stricter than that, administrators frequently use the "she had 1 beer" standard when judging male students. An example in the article involves a college switching the basis for its adjudged punishment from nonconsent to presence-of-alcohol when the poor boy involved sought help from a lawyer to force the school to consider his abundant evidence of consent. (The punishment stood; only the official basis for it changed.)

I'll provide some other quotes from the article in a series of comments (since the unified comment was rejected for being too long):

[thaumasiotes]

> The Los Angeles Times summed up the events: “The college’s investigative report, performed by an outside firm, said both parties agreed on the following facts: Both had been drinking, she went to his room, took off her shirt while dancing, made out with him and returned to his room later for sex, asking if he had a condom. When friends stopped by the room to ask if she was OK, she told them yes.” Prior to their encounter, the two exchanged texts about their planned assignation, and Jane texted another friend to announce she was going to have sex. Later, when Jane came to see the incident as rape, she reported it to the Los Angeles Police Department. A female LAPD officer investigated, and a female deputy district attorney declined to pursue the case. She wrote, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment.” Her report further found that Jane was capable of resisting and that John had reasonably concluded that her communications and actions conveyed consent.

> Jane lost her virginity that night, and when she sobered up and realized what happened, in distress she went to a faculty adviser who referred her to Dirks. An 82-page investigative report prepared for the school by the firm Public Interest Investigations shows it was Dirks, in her first phone conversation with Jane, who introduced Jane to the idea that she had been raped. Jane told the professor, “Oh, I am not calling it rape yet.” Over many hours of conversation, Dirks helped move Jane from what the professor described as Jane’s “strong state of denial” about what happened.

> Occidental hired an outside attorney to review the investigative report and make a recommendation about John. Here’s the conclusion of the attorney, as reported by the Los Angeles Times: “The attorney, Marilou F. Mirkovich, found that the young man did not know that his classmate was too drunk to consent because he, too, was inebriated. But, citing the college's policy that does not allow alcohol or drug consumption to excuse sexual misconduct, Mirkovich found that he should have known and was responsible for the assault.” After only a few months as a college student, John was expelled.

Here's FIRE's pithy description of the same incident ( https://www.thefire.org/sexual-assault-injustice-at-occident... ):

> Occidental pursued its own investigation by hiring the firm of Public Interest Investigations, which produced an 82-page report about the incident. Among other evidence, the report examined text messages between Doe and his accuser leading up to the sexual encounter. In the messages, the accuser asked Doe, “do you have a condom,” texted another friend “I’mgoingtohave sex now” [sic], and, in an exchange spanning 24 minutes, coordinated with Doe to sneak out of her dorm and proceed to Doe’s dorm to have sex with him.

This, despite the wording of the attorney finding above, is not someone who's incapable of consenting to sex.

[thaumasiotes]

More from Slate:

> While women’s consumption is often considered a mitigating factor at campus tribunals, men’s consumption generally is not. This disparity is sex discrimination, says Brett Sokolow, president of the National Center for Higher Education Risk Management. Sokolow has long fought for harsh penalties for accused men on campus. But in an open letter titled “Sex and Booze,” he writes: “If both are intoxicated they both did the same thing to each other. Why should only the male be charged if both students behave in ways defined as prohibited by the policy?” He has been called in to consult on cases in which schools have suspended or expelled the young man when both students were equally intoxicated. Schools that are doing so, he says, are creating male “Title IX plaintiffs.”

> Sokolow also says schools err when they adhere to an unrealistic standard that consumption of alcohol renders consent moot. Criminal statutes generally require that for sex to be nonconsensual due to alcohol or drugs, the accuser be not just intoxicated, but incapacitated. Having had a few drinks does not mean people, even young people, lack the capacity to make decisions about their actions, however poor those decisions may look in retrospect. Sokolow notes, however, that at some colleges “boards and panels can’t tell the difference between drunk sex and a policy violation.”

> KC Johnson, of the Manhattan Institute’s Minding the Campus blog, has compiled a list of top-ranked institutions, including Columbia, Duke, and Stanford, whose policies could lead to a young man being found responsible for a sexual offense simply if the complainant establishes that she had any degree of intoxication. Johnson notes that at Brown if two people were drinking and later an accusation is made, the disparate treatment is stark. The policy states: “A charged student’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than a mitigating circumstance.”

[thaumasiotes]

Here are some highlights from that article of KC Johnson's (from http://www.mindingthecampus.com/2014/06/if-she-had-drinks-yo... -- your call as to how mainstream Minding the Campus is):

> Broadening what constitutes sexual assault by redefining consent has been a principal goal of “activists”—who have worked with sympathetic faculty and (increasingly) the OCR. The McLeod case at Duke is a particular obvious example of how the new standards might function: two students were drinking and had sex, after which the university concluded that the male student, Lewis McLeod, had committed sexual assault because the accuser could not give consent. Why? Dean Sue Wasiolek explained: Even when both students consumed alcohol, “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”

As that standard is actually illegal, it's rare to see it admitted to so openly.

> Minding the Campus staff examined the alcohol-related policies of U.S. News & World Report’s 55 top-ranked universities. The schools fall into three categories: those that bypass the issue entirely; those that link sexual assault to the incapacitation of the victim; and those, troublingly, that have such a vague definition of consent to almost certainly be arbitrary.

> The majority of the top schools—32 of the 55—employ an incapacitation standard. [...] A few of these policies, such as Berkeley’s, Rochester’s, Yeshiva’s, and Penn State’s, have some vagueness, but reasonable people would construe them as not suggesting that having a drink in and of itself can prevent consent. Yale’s language—“consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition”—typifies this group. This standard is similar to that in criminal sexual assault cases.

> That leaves 18 of the U.S. News top 55—roughly one-third of the total—that avoid this standard. Instead, at these schools, at least in some instances, a student can be branded a rapist if a college disciplinary panel, by a preponderance-of-evidence (50.01 percent) threshold, determines that the accuser was intoxicated.

I feel comfortable having characterized about 1/3 of schools as "various schools".

> Six of the schools have internally contradictory policies, referencing the incapacitation standard regarding alcohol consumption, but then modifying it elsewhere in the university’s own policies.

> Dartmouth also claims to punish only according to an incapacitation standard, but then suggests that the “use of alcohol or other drugs can cloud people’s understanding of whether consent has been given (or even sought). A ‘yes’ from an individual who is under the influence of alcohol or other drugs may not necessarily mean ‘consent.’” Obviously an incapacitated accuser could not (by definition of the word) say “yes.”

> At William and Mary, consent “can only be given by someone in an unimpaired state of mind who is able to understand what is happening; consent is not valid if the party from whom consent is sought is impaired by the use of alcohol or drugs

> Wisconsin is unique among the 55 schools, in that it explicitly recognizes claiming sexual assault as a way for a student to avoid facing campus charges for alcohol offenses

(Not directly relevant, but pretty amazing, no? Might this lead to any less-than-clear-cut charges of rape?)

> Readers who follow the issue doubtless will notice that many schools in this third category of broadening the way in which alcohol can be used to establish a student’s guilt (Brown, Stanford, Duke, Dartmouth, Columbia) all have checkered records regarding general due process in campus sexual assault cases.

> Two final thoughts. First, even at the third group of schools, obviously every time two intoxicated students have sex, the male student isn’t brought up on campus charges. But at many of these institutions, the role of alcohol in establishing consent is so vague as to at least, on paper, deem as rape acts that few outside of campus would consider sexual assault.

> Second: given the efforts of “activists” to broaden the definition of consent, it’s likely that three or four years from now, there will be many more schools in the third category, making it more likely that more innocent students will be brought up on charges.

[ZeroGravitas]

I think we both know that's neither a mainstream, nor a neutral source, and it's not presenting it's argument fairly.

It puts scare quotes around "activitists" for goodness sake. That doesn't even make sense.

I don't see anything particularly shocking in your quotes, yet it's all written as if I should. For example, a "yes" from a sufficiently drunk person, may not count as consent, even if they're not literally unconcious. That doesn't sound particuarly extreme to me. In fact I'm more worried about the schools that apparently require incapacitated to mean unconscious since I've seen plenty of people unaware of what was going on due to alcohol, without being literally passed out.

So we've arrived at a solid definition of "drunk" at least, as this article makes clear that if you've not literally passed out, then they consider you capable of giving consent to sex. That's not the line I'd choose, but if you continue to argue for this, please just state that up front so overyone knows where they stand.

[ZeroGravitas]

That's impressive. Twice on HN I've asked someone to back up the drunk sex = rape claim and in both occasions they've came back with the exact same incident.

It truly must be an epidemic.

As I pointed out the last time, and indeed in this very thread when I asked for some kind of proof this wasn't all just bunk, both these people were very, very drunk. Vomiting repeatedly drunk. No recollection of having sex drunk. If anyone sober had had sex with these people, they'd be considered by most people to have been taken advantage of. The only reason this is a gray area is that both people got themselves into such a state that they themselves have no idea whether they broke the law that night. Which isn't a great defence in any legal situation.

[thaumasiotes]

This incident is being given to you because it has facts which are overwhelmingly, lopsidedly in favor of the boy, and he was expelled anyway (also, it features a formal legal opinion from a DA). It shouldn't be surprising that with those features, it comes up more than other cases do when you ask for an example. Two other cases are discussed just in the links I've given you -- and mentioned in my comments. I just posted a series of four comments to evade HN's length restriction on comments; I don't think it's particularly weird that I only included a quoted description of one case in that series.

But hey, here's another case from the Slate article:

> A group of students had been hanging out in the dorm on a Friday evening—there was drinking, but no one was incapacitated—when CB told Sterrett that her roommate had family members staying in their room and she needed a place to spend the night. Sterrett loaned her a shirt to sleep in and assumed she’d crash on the mat he and his roommate kept for visitors. Instead, CB came and lay down next to him on his bed. The two had made out in the past but had no serious romantic interest in each other.

> They talked quietly, started kissing, and then things escalated, as they often do when two teenagers are in bed together. When it became clear they were going to have intercourse, CB asked Sterrett about a condom, and he retrieved one from a drawer. Their sex became so loud and went on for so long that Sterrett’s roommate, unable to sleep in the upper bunk, sent Sterrett a Facebook message around 3 a.m.: “Dude, you and [CB] are being abnoxtiously [sic] loud and inconsiderate, so expect to pay back in full tomorrow …”

> The events that prompted the university to take these actions against Sterrett are detailed in an affidavit sworn on Sterrett’s behalf by LC, a friend of CB’s and her sophomore year roommate. LC stated that in July she received a call from an “emotionally upset” CB who explained that her mother had found her diary. LC recalled that CB explained that the diary “contained descriptions of romantic and sexual experiences, drug use, and drinking.”

> At the beginning of his sophomore year, Drew Sterrett was in limbo. He did not know whether he would face further disciplinary action as a result of the accusation against him, and indeed no formal written charge was ever issued. The single, cryptic Skype interrogation—the one that blindsided Sterrett over his summer vacation—was to be his sole hearing with campus administrators. He never met them in person.

> On Nov. 9, 2012, Sterrett was given a one-page document titled “Summary of Witness Testimony and Review of Other Evidence.” It consisted primarily of summaries of statements from anonymous witnesses. For example, it stated: “Two witnesses stated the Complainant reported to them that she tried to push the Respondent off her.” (CB didn’t know who these two witnesses were. She confirmed in her deposition that in her original statement to Cowan, she never said that she had tried to push Sterrett off her.) It also stated: “[A] witness reported that the Respondent told them that he engaged in penetration with the Complainant and ‘she was saying ‘no,’ and that it was just—it was ‘just like a second,’ and then he stopped, and then the Complainant left.’ ” (In her deposition, CB acknowledged this was not how their sexual encounter transpired, although she maintained that at some point she said “no.”)

> The document made clear to Sterrett that CB was claiming that she had said “no” during their encounter. He put together a lengthy rebuttal. Of CB’s claim, he wrote, “I cannot state it more clearly that this is untrue. I asked her if she wanted to have sex; she said ‘yes.’ ” (CB’s assertion was also challenged later by an affidavit sworn on Sterrett’s behalf by his freshman year roommate, the one in the upper bunk. The roommate said that he saw CB get into Sterrett’s bed of her own volition and that his bed and Sterrett’s were so close that he would have heard if she had exclaimed, “no” or “stop.” He stated that he was annoyed that their sex was keeping him awake and that as a friend of both he would have intervened if he felt something untoward was happening.)

> CB’s roommate, LC, in an affidavit sworn on behalf of Sterrett, said that over the summer CB’s mother had called her repeatedly warning her not to talk to Sterrett and to take CB’s side in all proceedings. LC stated that she never saw any change in CB’s behavior from the time of the alleged assault until the end of freshman year. But, she said, CB’s personality changed dramatically after her mother found her diary and the fall semester began. In her affidavit, LC said it pained her to speak against her friend, but she stated: “It is my belief, based on my personal observations and conversations with CB, that it is possible CB manufactured a story about a sexual assault in response to the conflict CB described occurring between her and her mother in the summer of 2012.”

> n Nov. 30, Sterrett received Cowan’s final “Sexual Misconduct Investigation Report.” His lawsuit states that the final report failed to take note of anything he had written in his rebuttal. The final report was longer than Cowan’s previous one, and included further allegations that either CB herself did not corroborate or appeared unsupported by the available evidence. For example, it stated: “The Complainant framed the events in question as a sexual assault to witnesses the day following the event.” In her deposition, CB acknowledged that she didn’t do that, that in fact she’d never used the words “sexual assault” to describe what happened. The report said that Sterrett’s roommate was asleep during the entire sexual encounter. This was contradicted by the time-stamped Facebook message complaining that he was being kept awake.

> With the help of a lawyer, Sterrett filed an appeal to the Office of Student Conflict Resolution. He included affidavits from classmates who said their words had been misconstrued and even falsified, and included the statement by Sterrett’s roommate that CB was a willing participant and that the roommate would have heard and intervened if CB had said no. The university’s response was to stand by its finding that Sterrett was responsible for sexual misconduct but to change the reason. Now Cowan issued an addendum stating that Sterrett had committed sexual misconduct because CB was too drunk to consent.

[thaumasiotes]

You want to argue that a university policy which prohibits sex while one party is "intoxicated" without specifying any method for assessing whether that standard is met, isn't a problem and can't be triggered by a minimal level of alcohol consumption. But this is not the case. If you'll permit a digression into some cases where alcohol did not figure in the judgment:

Here ( http://reason.com/blog/2016/04/07/student-suspended-for-rape... ) is reason covering a case in which USC found a boy responsible for sexual assault and was then overruled by the courts.

> The University of Southern California found a male student, "John Doe," responsible for sexual assault and suspended him for two years. But his alleged victim, a female student, "Jane," maintained that the sex between them was consensual.

> Doe was ultimately punished, not because he hurt Jane, but because he did nothing to prevent two other males from having rough sex with her—from slapping her on the buttocks—during an orgy.

> After dancing together, Jane, Doe, and Student 1 went off to a bedroom together to have sex. All agree that this encounter was consensual

> Later that evening, Jane and Doe returned to the bedroom to have sex again. Jane maintains that their sexual activity remained consensual, but other men—likely including Students 1 and 2—entered the room and also began performing sexual acts on Jane. These activities became rough, and culminated in one or two of the men—not Doe—slapping her butt.

> Jane later texted Doe that she had a good time with him, but "your friends suck though." She approached him again at a party some weeks later, but he declined to dance with her.

> Months later, in August of 2014—after discussing her "confidence issues" with a counsellor—Jane decided that the incident constituted sexual assault and filed a complaint. Still, she maintained that she had consented to sex with Doe: it was the other men who had violated her.

> USC disagreed, and accused Doe of violating 11 different sections of the student code of conduct, including "endangering the health of others," "engaging in obscene behavior at a university-sponsored event," and "engaging in non-consensual sexual touching."

> Consider that for a moment. Jane said her sexual activity with Doe was consensual. The university then made the paternalistic and indefensible decision to override her opinion on the matter and described their sex as rape anyway.

[danieltillett]

Here is Stanford's policy [1]. There is nothing about drinking heavily or being highly intoxicated. The policy just says "if intoxicated by drugs and/or alcohol".

1. http://www.thefire.org/pdfs/b6c0fa0511ba6bd299a0c17b60d41a56...

[ZeroGravitas]

Before I even click, I notice that's not a Stanford link. But instead something hosted by a political organisation that takes a stand on this very issue. Should I be worried by this oddity?

And now I've read it, and we've gone from confusion about what "drunk" means to confusion about what "intoxication" means. Do you have anything that actually defines this term in this context? Does a memo from 2009 have some kind of special legal force, that allows the widest possible interpretation of this term? If they meant after the first alcoholic drink, why didn't they clearly state that? Instead they used "intoxicated" which generally, but ambigously, means "really drunk" (thesaurus suggestion: "helplessly inebriated"). That's also what I would assume, but then I'm interpreting this memo in good faith.

[danieltillett]

I am not sure you should be worried unless you beieve the document has been doctored.

I think the basic problem we are facing is that the definitions are rather open to interpretation. I think we can agree that someone who is unconscious is incapable of giving consent and that someone who is 100% sober is able to (assuming they are of a legal age and not mentally impaired) - the issue becomes where to draw the line. This gets gray very quickly.

The real argument here is this interpretation is being done by ad hoc and inexperienced "courts" using a balance of probability. The risk of making a mistake is very high no matter how well intentioned everyone involved is.

[ZeroGravitas]

I'm not particularly worried about it being doctored, just cherry-picked and misrepresented.

Most people would agree that in common language "intoxicated" is a stronger term than "drunk", yet the best evidence people can find when challenged on repeating the "drunk sex = rape" meme (some going so far as to claim that many institutions have official policies that explicitly say that even 1 drink = drunk = rape) doesn't support what they initially said. Even when it's a cherry picked 8 year old document hosted externally by a third party as evidence for poltical purposes.

This suggests to me, that it's basically BS, as I said earlier. Clearly, from your latest comment, you understand that it's a complex area, with lots of gray. So why charge in and repeat BS you heard on the internet?

[danieltillett]

I actually said drunk, not slightly intoxicated. Drunk does have a legal meaning (it is illegal to be drunk in public in many jurisdictions), but even if we limit the discussion to "substantially" intoxicated then many, many men have had sex while substantially intoxicated. Consent here is very gray.

[bitwize]

I once saw a poster that said something like "Bob is drunk. Allison is drunk. Allison can't consent."

While a poster is not a statement of policy, it nevertheless is intended to communicate the standard that should be applied: that sex with a woman who is "drunk" (not "incapacitated" or even "significantly intoxicated") is rape, but this standard does not apply to a drunk man.

[mamon]

If you are drunk that's your fault, not any defense. I mean: drunk sex is like drunk driving, being drunk should be held against drunk person, not used in his/her favor.

[thaumasiotes]

If you are accused of raping a girl on the sole grounds that she was drunk when you had sex, then the fact that you were also drunk should be grounds for a counterclaim of rape against her.

Obviously, that would be ridiculous. But so far as I have read, only Brown's policy explicitly takes the position you advocate, that while the female being drunk casts blame on the male, the male being drunk casts even more blame on the male. ("A charged student’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than a mitigating circumstance.")

[emp_zealoth]

What the actual fuck. Are those people out of their goddamn minds?

So any girl can basically claim she had one shot if she feels like ruining someone's life and make an innocent man into a "rapist"?

What if it's two lesbians that shared a beer? Do the universe collapse or something?

The arbitraryness and possibilities of malicious abuse just blow my goddamn brain.

[chris_wot]

Well, this is why it goes before a court. There needs to be proof or lack of reasonable doubt that the victim was intoxicated.

[emp_zealoth]

Except the article itself says "Seizing this logic, advocates for gender equality have persuaded the federal government, under civil-rights authority, to force higher-education institutions to investigate and punish crimes of sexual violence. Dozens of colleges are under investigation for failing to comply.

Although not explicit in the rationale for this approach, the lower standard of proof required to bring campus disciplinary action—including expulsion—is surely attractive to antirape activists, as it is for other civil-rights advocates who pursue civil remedies."

lower standard of proof disciplinary action including expulsion

This is outright despicable. There already witch hunts going on in some unis (with NO actual filed complaints or charges)

[jules]

Isn't the point of the article that it doesn't go to a proper court, but should?

[chris_wot]

Which is sort of the point I was trying to make, but evidently quite badly. Yes, I agree with the author - these cases should be dealt with through the court system.