How Does Intoxication Affect Consent in Sexual Assault Claims?

In a growing number of cases, we see claims that a sexual encounter was not consensual because the accuser claims to have been so intoxicated that she was unable to consent.

Frankly, these are hard cases. The line between merely being intoxicated and incapacitated—so intoxicated that you can’t consent—is not finely drawn in criminal courts, much less in campus proceedings.

To be sure, unconscious people can’t consent to sex. Nor can people who are so intoxicated that they can’t understand what they’re doing. But being so drunk that your judgment is impaired isn’t the same thing as being so drunk that you don’t know what you’re doing. People—even married couples!—have been having drunk, enjoyable sex since the beginning of time. Drunk people have also been making bad decisions—but conscious decisions nonetheless—since the beginning of time. These distinctions are often lost on college campuses, however. We’ve seen a number of cases where an accuser who’s been drinking—but is far from falling-down drunk—has initiated sexual activity, only to have the person who responded to those entreaties later be charged with sexual assault.

The standard language on intoxication in many schools’ student codes is generally not helpful. Normally, the codes just say that students who are incapacitated can’t consent. But of course they can’t: that’s the definition of incapacitation. Circular definitions tend to be about as enlightening as definitions that are circular.

As a result, these cases often turn on whether you can show that although your accuser may have been drinking, she was not so drunk that she didn’t know what she’s doing. Alcohol-impaired judgment isn’t the same thing as incapacitation.

To that end, you want to find witnesses who may have seen you both that night and can testify to how you looked. Were either of you stumbling? Slurring your words? Acting more than just a little drunk?

These cases become more difficult the more dramatic the signs of intoxication are. If your accuser vomited at any point in the night, your case may be hard to win. That’s not necessarily fair—not everyone who vomits is incapacitated, and the passage of time is important—but that distinction may be lost on a campus disciplinary panel. Similarly, if other people tried to intervene to stop your accuser from leaving the party with you or tried to keep you away from her, that can make your case very hard.

The challenge with incapacitation cases is that the line between intoxication and incapacitation is hard to draw. And schools spend almost no time trying to clarify where that line is. In one case we handled, the investigator took the following approach: she ballparked the accuser’s weight (not even bothering to ask her) and the number of drinks she’d had, used a little chart you can buy online to estimate her blood alcohol content, and then declared that level to constitute incapacitation, without explaining how she reached that conclusion. As this example suggests, intoxication cases often give schools carte blanche to discipline students in close cases. This is deeply unfair—particularly in light of how much drinking happens on college campuses—but it substantially limits the school’s liability.

Often, your temptation in a case like this may be to defend yourself in one of two ways:

  1. by saying that your accuser initiated the sexual contact, or

  2. by saying that you were really drunk too.

These make sense as a defense; if someone comes up to you and says that they want to have sex, your natural assumption may be that you are allowed to have sex with them. However, if someone is so drunk that the school is going to discount those indicators of consent, you should think carefully about how much you want to base your defense solely on what your accuser did to initiate sex.  After all, people who are actually incapacitated cannot give valid consent, no matter how enthusiastic they may seem. Focusing on objective signs that your accuser was not drunk may be more fruitful.

Similarly, it is natural to argue that you were drunk too (assuming you, in fact, were), and that it’s therefore unfair for the school to take your accuser’s side just because she filed first. This is a good argument at first glance: if a college equates drunkenness with incapacitation, then two drunk people who have sex are technically raping each other. Of course, that is absurd, but it shows how far through the looking glass we have gone.

But that argument is unlikely to get you far in a campus proceeding. Some schools, unfortunately, take the view that violating their disciplinary codes while drunk is an aggravating circumstance, not a mitigating one. Read the code at your school carefully to learn how this defense will affect you. You also don’t want to damage your own credibility by saying that you couldn’t have consented when you know in your heart that you did. Honesty tends to be the best policy, even in the upside-down world of campus misconduct cases.

That said, if you do have doubts about whether you were able to consent, you may want to think about asking the school to investigate your accuser for sexual assault. Just keep in mind that such a counter allegation may be construed as retaliation. It very much depends on the facts of your case.