F.I.R.E.'s Critique of Duke's Sexual Misconduct Policy

Yesterday, I critiqued Duke’s excellent but flawed sexual misconduct policy.

But I also have problems with F.I.R.E.’s critique of the Duke policy. For instance, F.I.R.E. cites the North Carolina Court of Appeals (State v. Haddock), to suggest that North Carolina’s definition of “consent,” in cases involving intoxication, is superior to Duke’s.

So what does the North Carolina law say?1 In a nutshell: If X drinks him or her self into “unconsciousness or physical helplessness,” then having sex with X while X is knocked out is rape. However, if X voluntarily drank into a state where X is conscious, but X is “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act” — then according to North Carolina, X can legally consent to sex.

Here’s what F.I.R.E. thinks of that:

North Carolina’s own cases and statutes dealing with nonconsensual sexual relations are instructive. Unlike Duke’s policy, they take into account both the degree of intoxication and whose decision it was to become intoxicated.

I don’t think that the North Carolina law is “instructive,” unless you mean “instructive on how to make some rapes legal.” The North Carolina law says, in effect, “if she didn’t want to get raped, then she shouldn’t have chosen to drink all that booze. What did she expect would happen?”

And F.I.R.E. looks at that law as an example of how consent should be defined. How very instructive, F.I.R.E. thinks!

So right away, F.I.R.E. has zero credibility when it comes to discussing what a reasonable definition of “consent” is.

F.I.R.E. continues:

Duke allows third-party reporting of allegations of sexual misconduct, and requires such reporting by university officials even when alleged victims choose not to come forward. Third-party complaints may even be anonymous, as the policy permits “[b]lind reporting.”

That sounds awful. It’s also a lie. From Duke’s webpage:

Students may contact the Durham Police directly (911 off campus or 560-4427/560-4609) or the GVPI office or Duke Police can help facilitate reporting. Blind reporting—filing a report without your name attached to it—is an available option with both Duke and Durham’s police departments.

So it’s police policy, not university policy — but F.I.R.E.’s letter falsely states that Duke has a blind report policy.2

F.I.R.E. writes:

Students are said to be incapable of giving consent when they are “intoxicated,” “psychologically pressured,” or simply in a “circumstance” whereby they “perceive[]” a “power differential[]” and therefore are said to be unintentionally coerced.

I’ve already agreed with F.I.R.E. that the Duke policy discussion of “intoxication” is deeply flawed. Sadly, the rest of F.I.R.E.’s statement is simply an unfair reading, as Sarah at the SAFER blog argues:

So [F.I.R.E.’s] leap of logic is as follows: the policy acknowledges that sometimes power differentials can lead to coercive sexual situations. The policy later says that sometimes consent cannot be given if someone is being coerced. Therefore sex between two people with differing amounts of power is actually rape. Only, that last part? Isn’t actually stated anywhere. And is a gross misinterpretation of the intent of the policy as I believe it’s meant to be understood.

Finally, F.I.R.E. goes on for paragraphs and paragraphs pretending that this passage from Duke’s policy is ambiguous:

Rights of accused students. Students accused of sexual misconduct have the same rights as any student accused of a policy violation (see “The Undergraduate Disciplinary System”), which includes the right to a 120-hour (five day) notice in advance of a hearing, the right to bring material witnesses to speak on his/her behalf (written testimony of two character witnesses may be submitted to a hearing panel before the hearing begins), and the right to ask questions (directed through the hearing panel) of any witness present.

That in no way can be be reasonably interpreted as meaning that accused students have only three rights; they clearly have “the same rights as any student,” and they specify where to find those rights spelled out. But F.I.R.E., searching for an issue, pretends this is ambiguous. Here’s a typical example of F.I.R.E.’s carping about this:

Still other rights that go completely unmentioned in the sexual misconduct policy but which are mentioned in the standard UCB policy are the right to challenge panel members who might have a conflict of interest, the right “to choose the extent to which he or she shares information” (presumably meaning that a student cannot be forced to incriminate oneself), the right to rebut witness testimony (as opposed to the right to question witnesses, which is discussed above), the right “to present additional witnesses or information at the hearing,” and the right “to be found responsible only if the evidence meets a clear and convincing burden of proof.” Do these rights exist in sexual misconduct hearings or not? If they do exist in sexual misconduct hearings, why is that not made clear?

But it is made clear. “Students accused of sexual misconduct have the same rights as any student accused of a policy violation” is not ambiguous.

Duke’s new sexual misconduct policy could be better, and I hope they’ll improve it. But I frankly doubt that any improvements — other than having no sexual misconduct policy whatsoever — will satisfy the folks at F.I.R.E.; their critique simply isn’t made in good faith.

  1. Like F.I.R.E. I’m basing this on the Court’s discussion of the law in State v. Haddock. []
  2. The FBI Bulletin (pdf link) explains why blind reporting can be beneficial. Of course, blind reports cannot be used as evidence against anyone in court. []
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29 Responses to F.I.R.E.'s Critique of Duke's Sexual Misconduct Policy

  1. Pingback: Alas, a blog » Blog Archive » Duke’s excellent new sexual misconduct policy marred by ambiguous language about intoxication

  2. 2
    Sailorman says:

    [deleted, doublepost]

  3. 3
    Sailorman says:

    Huh. I was looking forward to a fun argument but I mostly agree with you. How boring is that? Fortunately, there’s one issue ;)

    So what does the North Carolina law say?1 In a nutshell: If X drinks him or her self into “unconsciousness or physical helplessness,” then having sex with X while X is knocked out is rape. However, if X voluntarily drank into a state where X is conscious, but X is “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act” – then according to North Carolina, X can legally consent to sex.

    This particular one is a bit tricky, and I want to try to explain it differently. I don’t think you’re coming from it at the right angle.

    Legal rape is all about defining the ACCUSED’s behavior as criminal or non-criminal. It has to be analyzed from that standpoint. The behavior of the victim is not especially relevant, other than how it affects the analysis of the accused’s behavior.

    I know, it sounds crazy. And in many ways, it is. But that’s how the system works. Blame the Framers and our criminal justice system. I am writing this post in a “reality based” way, i.e. accepting criminal law as it is.

    Anyway: the goal of criminal law is usually to make the laws very self-referential. You are in charge of your own actions, and that’s pretty much it. You’re not responsible for what someone else does (or doesn’t) do; you are only responsible for yourself.

    So, for example, take this scenario: John asks Bob if Bob would like to have sex and Bob says yes, and John and Bob have sex.

    Great, not rape! Unless–says you–Bob was drinking.

    OK, then. Let’s assume at some point the “good decision” line is going to get crossed by Bob. And that line is different for every person. It may be one beer or seven; it may never get crossed at all.

    So: remember that you’re bound by the weird approach of law. Bob’s the one who is drinking but the only person you can make “rules” for is John. And you have to come up with a rule that says “at this point–but not before it– we will convict John of rape.”

    Remember, John and Bob are adults. You don’t want to criminalize their sexual encounters unless it’s rape. The default is that a “yes” is consent. So you need to define when a “yes” becomes insufficient consent, and you need to make that definition in a way that John can follow it AT THE TIME, not just in hindsight.

    Let’s try it. So, what’s your rule? Are you going to convict John based on Bob’s alcohol consumption? He’s a rapist after 1 drink, 2 drinks, 3.6 drinks? Of course not. Well, are you going to convict him based on whether Bob is drunk? That sounds better, but has its own set of problem: what the hell does “drunk” mean, and how exactly is John supposed to test and know whether Bob is “too drunk to consent” or “drunk but capable of consenting?” Is John expected to accurately assess whether Bob is lying when he says “yes?” Is John responsible for knowing how much Bob drank; how he handles it; how many carbs he ate with dinner?

    You’re running into a problem here, as you can see. From a moral standpoint, the important thing is what Bob really wants. But when you’re writing the law, you don’t KNOW what Bob really wants. And neither does John. John only knows what Bob does and says, not what Bob thinks. So your rule needs to tell John how to follow the law based on external appearances only: in other words, when to stop trusting Bob.

    (Don’t forget: John may be drunk, too. There’s no law against that. You might want to take that into your rulemaking.)

    Are you frustrated yet? Have you come to feel that there’s no way to accurately describe the line?

    You may say, “there’s no line. John should just not even think of sex; John should just know where the line is; John should act better.”

    “Well,” John may say, “I like Bob. I need to know where that line is. I want to be able to have drunksex and so does he, but I don’t want to be convicted of rape!”

    And with that, I can almost predict the response: How dare John want “not to be convicted?” John is just trying to find out how close he can get to the “rape line” without crossing it! John is a rape apologist/wannabe rapist/soon-to-be criminal!

    Well, fuck no. John may well be an immoral asshole, but John’s not a criminal. John doesn’t want to commit a crime. He is trying to find out how close to the line he can get… and that’s legally OK, because that’s what the line is FOR. And it’s important that John can know where that line is, just like it’s important to know where the line is between insults and slander; between assault and self defense; between taking what’s yours and stealing; between exercising your rights and abusing an officer; between fair use and copyright; between ILLEGAL and LEGAL.

    Or, you may say “well, it doesn’t matter if the line is fuzzy. John should stay the hell away from it.”

    Again: fuck, no. All people should be able to do all that is legal, without fear of conviction. That’s the whole point. Can you imagine having “you’ll know it when you get convicted” lines for all of our laws? Why make an exception here?

    Laws work best if people know where the line is. So nobody should complain about defining it. And if you can’t define it with good accuracy, you need to change the law. That is one of the bedrock principles of our country. And no, there’s no “special exception” for rape.

    The problem, as you probably noticed, is that trying to define the line is almost impossible. So the law doesn’t define the line. In other words, the rule “you can’t convict someone unless they could understand what was illegal” wins over the goal “it would be better if drunksex didn’t happen as much; many people are getting raped.”

    THAT’s the problem.

    ETA: I am not arguing against the proposition “people can be too drunk to consent.” Nor am I arguing against the proposition that “…therefore, initiating sex with such a person would be morally wrong.”

    It’s just that some moral codes carry too much flexibility to properly be enshrined in law, unless you are willing to criminalize a lot of normal conduct.

  4. I have a question about the North Carolina law as Amp summarized it:

    If X drinks him or her self into “unconsciousness or physical helplessness,” then having sex with X while X is knocked out is rape. However, if X voluntarily drank into a state where X is conscious, but X is “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act” — then according to North Carolina, X can legally consent to sex.

    The fact that X can legally consent, obviously, doesn’t mean that X did legally consent in any given case. So wouldn’t the usefulness of this law depend on how consent is defined?

  5. 5
    SeanH says:

    Sailorman: I don’t think you are right that the law in the Western (or American) tradition “is all about defining the ACCUSED’s behavior as criminal or non-criminal”, with any other considerations barred.

    Say I torch an abandoned building, without checking to see if it’s really empty. If it was empty, I will be charged merely with arson*. If it wasn’t empty – a homeless person was asleep inside, and they died – I will be charged with manslaughter or murder as well. My state of mind is irrelevant to this distinction. What matters in whether I am charged with manslaughter or not is whether, in fact, I killed somebody. If your claims about the law were true, we would have to charge the arsonist with exactly the same crime in each case, regardless of whether anyone died or not.

    Or, more simply, say I attack somebody and violently beat them. If they die, I will be charged with murder. If they do not, I will be charged with something else (attempted murder, assault, GBH, whatever). Whether or not they die may well depend on something other than my actions – the doctor’s skill, the traffic that stopped the ambulance arriving in time, the victim’s prior medical history, sheer change – but I am still legally held accountable for whether they die or not.

    It’s just not the case that our laws are formulated so that anybody can ahead of time determine the exact legal consequences of their actions.

    *okay, maybe other things too, but bear with me

  6. 6
    mythago says:

    Legal rape is all about defining the ACCUSED’s behavior as criminal or non-criminal. It has to be analyzed from that standpoint. The behavior of the victim is not especially relevant, other than how it affects the analysis of the accused’s behavior.

    But that’s not correct. Lots of laws turn to the behavior of the accuser, and rape is one of them – because (other than statutory rape) it looks to whether the accuser gave consent.

  7. 7
    Sailorman says:

    mythago, I’m not sure what you’re disagreeing with.

    Obviously, we both know that rape requires lack of consent.

    You can phrase it from the perspective of the accused, though: “Did the accused initiate sex without consent?” Or, more accurately if we’re talking about current law, “did the accused initiate or continue sex known to be unconsensual?”

    You could say that differently if you would like, but we’d be talking about the same thing. I’m making the point that for talking about rape (and for almost all criminal laws) it is most correct to use the framing of “what did the accused do/not do, based on the information and knowledge put before her.” That’s because when it comes to evaluating intent and thought and bias, it’s only relevant for the accused.

    Sean: you’re missing the point. I am talking about the distinction between legal and illegal behavior, not about the distinction between charges for behavior which is wholly illegal and known to be so.

  8. 8
    VK says:

    but has its own set of problem: what the hell does “drunk” mean, and how exactly is John supposed to test and know whether Bob is “too drunk to consent” or “drunk but capable of consenting?” Is John expected to accurately assess whether Bob is lying when he says “yes?” Is John responsible for knowing how much Bob drank; how he handles it; how many carbs he ate with dinner?

    Does US law not have similar standards to UK law in this respect – i.e. the reasonable person standard? http://en.wikipedia.org/wiki/Reasonable_person

    John is expected to be able to access whether or not a reasonable unbiased person with the same knowledge John has would consider Bob too drunk to consent. John is also expected to actively seek out more information if a reasonable person would do so. If John isn’t sure where that line it is John’s responsibility to find out where it is.

    And yes that’s a fuzzy line, but it’s fuzzy for a reason – that some cases with almost exact same details could fall either way and that’s why you get a trial and a jury, or in this case inquiries and disaplinary processes rather than just stamping cases to either side. They assess what happened and determine which side of the fuzzy line it comes – but if you don’t want to risk it you stay well away from the line.

  9. 9
    RonF says:

    So, Duke students A and B get drunk at a party. Having done so, they then meet (for the first time that evening) out on the dance floor. A proposes the horizontal bop to B, B accepts and off they go. Later on B sobers up, decides “I’ve been raped” and files a complaint. A and B go before the body authorized to adjudicate this policy. A says “B consented.” B says “I can’t remember.” The board says “If B can’t remember, then obviously B was too drunk to give meaningful consent. A, you’re a rapist and will suffer the consequences” A then asks “First, why do you presume that B was too drunk at the time and that B didn’t get drunker later and forget that as well? Second, if being drunk excuses B from the consequences of B’s behavior, how is it that it does not excuse me from mine? Why is it that I should have seen that B was too drunk to act responsibly but B is not liable to see that I was too drunk to act responsibly?”

  10. 10
    Sailorman says:

    Sure, we have reasonable people here, though no Clapham omnibus. And to some degree those reasonable standards come up in criminal law as well, often when it comes to things like intent.

    It’s a difficult standard to apply here, because it depends entirely on externalities and not on how drunk the person actually is. I’ve seen people who appeared shitfaced but were actually not, and I’ve seen people who appeared relatively sober after having enough alcohol that they were definitely drunk.

    And even in those cases, I have very rarely seen anybody reach the point where they couldn’t make consensual decisions. Do people make bad decisions? Sure, all the time–drunk driving is an excellent example. But then again, simply having too many drinks is often a bad decision in the first place, and that’s not illegal either. We aren’t usually trying to criminalize stupidity.

    Also, there’s the issue of discretion. The more ‘fuzzy’ that things get, the more that 20/20 hindsight and discretion and power come into play. And then things often get controlled by focus groups, and what results often isn’t something which I consider fairly applied law. (Raise your hand if you think the outward “reasonableness” of given actions are going to be the same if the victim is a babyfaced woman with long straight hair, versus a woman with large breasts and curly hair. Anyone?)

    Obviously there is still bias in any system and there always will be. But focusing on clarity reduces bias, in my experience.

  11. Sailorman:

    It’s just that some moral codes carry too much flexibility to properly be enshrined in law, unless you are willing to criminalize a lot of normal conduct.

    … I’m not sure I’m not.

    I mean, where the consent issue isn’t clear-cut, there are three possibilities:
    1) the victim feels violated, and was raped.
    2) the victim feels violated, but was not raped (as defined by the law or policy).
    3) the victim does not feel violated, although he or she was raped (as defined by the law or policy)

    Now, #1 is how the system is supposed to work (ideally, there will be no non-consensual sexual activity, but this is second-best). I’m more interested in minimizing #2 than avoiding #3 on the principle that people won’t report incidents in which they don’t feel violated. So there’s very little downside to creating more #3.

    People don’t feel less victimized or less traumatized or whatever if they’re told “well, no laws were broken.”

  12. 12
    VK says:

    The board says “If B can’t remember, then obviously B was too drunk to give meaningful consent. A, you’re a rapist and will suffer the consequences”

    Where does it say that would be the decision in the policy?

    Also in this situation surely there would be witnesses (from the dancefloor) would could give evidence on how drunk B seemed – which becomes a big factor in whether or not it was reasonable for A to believe B had consented.

    Surely in this situation there clearly needs to be an inquiry, but that doesn’t mean the outcome will be in B’s favour.

  13. 13
    VK says:

    It’s a difficult standard to apply here, because it depends entirely on externalities and not on how drunk the person actually is.

    But that’s what makes it a good standard – because externalities are all the other person has to go on. You are judging their decision on the information they had and asking was it a reasonable one? Or was it so unreasonable that their behaviour was criminal?

  14. 14
    Sailorman says:

    If you want to change the conversation from “how do you define rape in this situation?” to “how do you define reasonableness in this situation?” that’s fine with me, but they are the same question. In both instances you are setting the standard for what is not OK, and in both instances it’s a question which has to be answered.

    FWIW, if you don’t answer it, the courts will simply write the rules. Eventually someone will appeal, and some randomly-chosen judge(s) will set precedent by reciting a list of considerations and/or weights, and then that will be that.

    I’m also curious about how y’all want to address the concept of dual drunkenness or perpetrator drunkenness. It’s one thing when you’re talking about the sober accused who takes advantage of the drunken victim; it’s another thing when the accused starts drinking as well. Do you give credence to the “I didn’t mean to do that; I was drunk?” defense? How about the “well, it seemed reasonable at the time, because I was shitfaced?” defense? Do you start charging them both with rape, or do you resort to societal defaults regarding who is “guilty” or “innocent?”

    Not at all incidentally, there’s a big similarity in the criminal code regarding defenses. If someone slips you a drug and you commit a crime as a result, you can use your drug-induced mental state as a defense. If you took it on your own, you can’t. So, will you hold a drunk person liable for “unreasonably” interpreting consent as “real,” but not the reverse?

    I’ll tell you what Duke has probably done. Duke has probably skipped over all those hard questions. If they didn’t, they’d have much more clarity in their rules. But Duke is a private institution, and nothing serves them better than a wiggle-room rule which allows them to target publicly problematic people. Nifty!

    It doesn’t work so well in criminal court, though.

    (And I’d be cautious about relying too much on what society or the judiciary thinks is “reasonable.” Since–based on a variety of horrible verdicts–unconscious people can apparently consent, and abused people, and threatened people, I’m having trouble believing that “reasonable” is going to really change the status quo at all, on a general basis. It will, however, provide great fodder for the popular victim/unpopular defendant scenario, and will provide great opportunity for bias in enforcement.)

  15. 15
    mythago says:

    Sailorman, c’mon. You remember this one from Crim Law. They’re two different mental states. We’re looking at the mens rea of the accused, but the ability of the accuser to consent. “I was so drunk that I couldn’t formulate the intent to rape” != “I was so drunk I couldn’t meaningfully consent.”

  16. 16
    Ampersand says:

    Sailorman writes:

    Anyway: the goal of criminal law is usually to make the laws very self-referential. You are in charge of your own actions, and that’s pretty much it. You’re not responsible for what someone else does (or doesn’t) do; you are only responsible for yourself.

    As Charles pointed out to me in conversation, the North Carolina law can’t be defended on this basis. After all, the NC law requires the accused person to know if the alleged victim became voluntarily or involuntarily intoxicated. But it’s obviously possible, in some circumstances, for the accused person to have no idea at all.

    For example, Selma enters a party to find that Bruce is already falling-down drunk to the point of total incoherence. Since Selma wasn’t there when Bruce got drunk, she has no way of knowing if the drunk state is voluntary or not. Did he drink ten beers? Or did he accidentally guzzle what he thought was water, but it was vodka? Or did someone spike the punch that was supposed to be non-alcoholic?

    I think it makes much more sense to base Duke’s rules — and the law — on what the accused person can reasonably observe.

    Suppose George Will and I are at a party, and both of us are drinking. I want to have sex with George Will. So he and I are making out, and George is all over me, and saying “I want you inside me Barry,” and undoing my pants, and I’m saying “oh boy George!” and undoing his pants. In that scenario, even though we’re both drunk, both of us are clearly consenting. And any reasonable observer could see that.

    On the other hand, suppose George Will is lying drunk on the bathroom floor, so drunk that he’s not sure who he is or who I am, and he’s incapable of standing or of conducting even a semi-lucid conversation. I lean over him and say “George? George! George, can I fuck you? Just say yes, George. George? Can you even hear me? Are you awake? Oh, good, your eyes are open. George, say yes. Say yes. Say yes.” Even if I finally convince George to slur out a “yes” in this circumstance, that’s not substantive consent. And I should know that, even though I’ve been drinking too.

    Finally, suppose George and I are equally drunk, lying side by side on that floor, neither of us capable of standing or lucidity or anything more than the occasional giggle or muttering “oooh… tile floor is cool against skin.” In that case, it’s a safe bet that no sex will happen at that time.

    So, for example, take this scenario: John asks Bob if Bob would like to have sex and Bob says yes, and John and Bob have sex.

    Great, not rape! Unless–says you–Bob was drinking.

    That’s not what I say.

    A lot of your arguments (and Ron’s) seem to come from a belief that I’ve said “if anyone has sex with someone who was drinking, then it’s rape.”

    I haven’t said that. I haven’t said anything that can be reasonably interpreted as meaning that. Please stop implying otherwise.

    So: remember that you’re bound by the weird approach of law. Bob’s the one who is drinking but the only person you can make “rules” for is John. And you have to come up with a rule that says “at this point–but not before it– we will convict John of rape.”

    Remember, John and Bob are adults. You don’t want to criminalize their sexual encounters unless it’s rape. The default is that a “yes” is consent.

    In practice, unfortunately, the default is not always that a “yes” is consent. All too often, the default is that silence or a failure to say “no” is consent. Which is what feminists are hoping to change.

    As for a line, I’d say that if a reasonable person, observing X, would conclude that X is “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act,” then having sex with X is over the line, regardless of if X is that drunk voluntarily.

    Now, to be that drunk (or drugged) is to be very drunk indeed. If I’m roaring drunk, but I’m also grabbing at George Will’s zipper and yanking it down and saying “please, George, do me, you hot hunk of bow tie,” then no reasonable person would suppose I was “substantially incapable” of “resisting.” If I’m capable of yanking off George’s pants, I’m capable of resisting.

    On the other hand, suppose that I’m just barely conscious, lying on a sofa, unable to stand or move effectively, going “huh? Whazzit? Is that you, George? Mumble mmrph,” then I’d say a reasonable observer would say I’m “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act.”

    (I think somewhere in this thread you said that you’ve never once seen a person that drunk? Be that as it may, trust me, it happens. It’s not even especially rare, in some circles.)

    To suggest — as North Carolina law does — that I can be in such a state, and still be considered able to consent, as long as I haven’t yet crossed the line into actual unconsciousness — is a bad idea. It moves us away from the idea of meaningful consent. And, contrary to what F.I.R.E. says, it is not an instructive model of what Duke should do with their policy.

  17. 17
    Mandolin says:

    Stay away from George Will, Ampersand. He’s totally mine.

  18. 18
    Robert says:

    This discussion seems to take as a given that there is an initiating partner and a passive partner, whose role is limited to “consent” or “resist”. Aren’t things actually a bit more complex than that?

  19. 19
    Charles S says:

    Robert,

    Consenting is only a passive position if consent is defined as the absence of resistance. In Barry’s George Will example A, which partner are you claiming is the active initiator and which partner are you claiming is the passive consentor?

    Both Sailorman and RonF’s examples are phrased as having an active initiator and a passive drunken consentor, but they would be exactly the same legally if the active initiator was drunk and the passive consentor was sober (or also drunk). If one participant is so drunk that they are “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act,” and they proposition someone for sex, then the person who consents is guilty of rape. Under North Carolina law, the passively consenting person is only guilty of rape if the intoxicated person became unintentionally intoxicated. Under the Duke policy the manner by which the intoxicated person became intoxicated doesn’t matter.

    Under the influence of alcohol, at the point where one becomes “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act” one is not capable of being the initiator of much of anything. However, one could certainly have been the initiator earlier (or it could simply be too complicated to be meaningfully described in that manner, as you suggest).

    Certainly, the Duke example below would be improved if they changed the bolded sentence to “Felix soon suggests they go back to his room, and Andrew agrees,”

    Andrew and Felix have been flirting with each other all night at a party. Around 12:30 a.m., Felix excuses himself to find a bathroom. Andrew notices Felix slurring his speech. Andrew wonders if Felix went to the bathroom to vomit. When Felix returns, the two begin flirting more heavily and move to a couch. As the conversation continues, the two become more relaxed and more physically affectionate. Andrew soon suggests they go back to his room, and Felix agrees. As they walk down the stairs, Andrew notices that Felix looks unstable and offers his arm for support and balance. When they get back to his room, Andrew leads Felix to the bed and they begin to become intimate. Felix becomes increasingly passive and appears disoriented. Andrew soon begins to have sexual intercourse with him. The next morning, Felix thinks they had sex but cannot piece together the events leading up to it.

    This is a violation of the Sexual Misconduct Policy. Felix was clearly under the influence of alcohol and thus unable to freely consent to engage in sexual activity with Andrew. Although Andrew may not have known how much alcohol Felix had consumed, he saw indicators from which a reasonable person would conclude that Felix was intoxicated, and therefore unable to give consent. Andrew in no way obtained consent from Felix.

    The point where Andrew fails to get consent is not where he suggests they go back to Felix’s room, the point where he fails to get consent is here: Felix becomes increasingly passive and appears disoriented. Andrew soon begins to have sexual intercourse with him. At this point, Felix is the passive partner who is too intoxicated to consent and Andrew is the sole active participant, and that is the problem.

  20. 20
    Charles S says:

    On the other hand, if “substantially incapable of … appraising the nature of his or her conduct” is normally interpreted much more broadly (like the Duke policy’s very broad “intoxicated”), then the NC law becomes more comprehensible.

    If I intentionally get so drunk that I start propositioning strangers in the street, I have not been raped if one of them accepts and we have consensual drunken sex. On the other hand, if someone plies me with unusually strong drinks in order to get me so drunk that I proposition this person for sex, then even though the sex seems consensual at the time, the NC law permits me to declare in retrospect that I have been raped. That seems like a reasonable and valid distinction. I am responsible for my positive actions even when I am voluntarily drunk, but if someone drugs me into a pliant state in order to take advantage of my pliant state, then they are responsible for having done so, and I am not responsible for the actions I take in that drugged state.

    I’m not sure which way the NC law is intended to be read. In either case, it seems to deny recourse to the person who is voluntarily semi-conscious and incapable of resisting sexual advances, which seems unjust.

  21. 21
    Charles S says:

    Lastly, to be clear, drunkenly propositioning people does not give the propositioned person license to have sex with me. If I offer myself to someone, they accept, and then I later say, “On second thought, go away,” they obviously are required to end our sexual interaction immediately, whether or not either of us is drunk.

  22. 22
    Robert says:

    Well, in that case, you did give them a sex license (“oh yes, barry, you and me now and forever, take me”, gasped George).

    That sex license is singly revocable; you can always take it back (“wait, this is wrong!”). “Yes!” is not automatically forever.

  23. 23
    mythago says:

    Robert, I think Amp’s hair-raising fantasy there (as if he could top Suzie Bright imagining getting head from Dan Quayle) has some examples of mutual bodice-ripping covered.

  24. 24
    james says:

    I’m not sure which way the NC law is intended to be read. In either case, it seems to deny recourse to the person who is voluntarily semi-conscious and incapable of resisting sexual advances, which seems unjust.”

    In their terms, if you read the court ruling there are three grounds for rape: (1) actual force, (2) constructive force and (3) implied force. In (1) and (2) there is no consent. Implied force splits into two classes: (3a) situation where there’s no consent (i.e. unconciousness or mental disability) and where it allows you automatically prove rape without having to argue via (1) or (2), and (3b) situation where there is consent but the law overrules it (the phrase they use is that implied force ‘negates consent‘).

    The ruling is specifically about (3b) whether consent (which is broadly whether you understand a proposition and freely choose a course of action) is ignored by the law for policy purposes if you’re voluntarily drunk – as it is for example if you’re under 18 or involuntarily drunk. If you’re semi-conscious and incapable of resisting sexual advances – too drunk to consent – you’re still protected by (1) and (2).

    I think the issue here is the situations where you consent to something (i.e. understand a proposition and freely choose a course of action) but are “substantially incapable of … appraising the nature of your conduct”. I think Amp’s examples are misguided in spelling out the difference:

    If I’m roaring drunk, but I’m also grabbing at George Will’s zipper and yanking it down and saying “please, George, do me, you hot hunk of bow tie,” then no reasonable person would suppose I was “substantially incapable” of “resisting.” If I’m capable of yanking off George’s pants, I’m capable of resisting.

    You completely ignore the fact the law is an either/or disjunction here. No-one would say you’re “substantially incapable” of “resisting”. People could say you consent, but don’t weight the consequences of your actions because your judgement and decision making is affected by drink and you are “substantially incapable of … appraising the nature of your conduct”. This could be rape under the substantially incapable formulation.

    “On the other hand, suppose that I’m just barely conscious, lying on a sofa, unable to stand or move effectively, going “huh? Whazzit? Is that you, George? Mumble mmrph,” then I’d say a reasonable observer would say I’m “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act.”

    True, but it’s not relevant, the ‘substantially incapable…’ formulation adds nothing here. If you don’t understand what’s going on or make a decision you don’t consent (again in the understand a proposition and freely choose a course of action sense). So this would be rape whether they had the ‘substantially incapable…’ formulation in the lawbooks or not.

    And surely whether you can resist or not is completely irrelevant? Consent is based on your psychological state, not your physical capabilities.

  25. 25
    Charles S says:

    And surely whether you can resist or not is completely irrelevant? Consent is based on your psychological state, not your physical capabilities.

    If it is irrelevant, why is it in the law? That you think it is irrelevant suggests to me that your analysis (which seems reasonable otherwise) is a misreading of the law.

    Sadly and disgustingly, googling around for the exact language of the law again, I find that your reading of the NC law is indeed wrong (depressing appeals verdict overturning a rape conviction in NC on the grounds that the judge did not make clear that voluntary self-incapacitation did not count as absence of consent under the law).

    So the law counts , “Huh? Wha? Yeah, yu ca ta mm pnts … snerk, zzz, huh? Wha ys doong? I thnk ‘m gn ta b SICK” combined with no substantial physical resistance as being conscious but substantially incapable of appraising the nature of your conduct, it just doesn’t care about it if you happen to have gotten into that state voluntarily.

    Now, if you are so drunk that you can’t move or speak, then the law does protect you as being physically incapacitated, and the law doesn’t care how you got physically incapacitated.

  26. 26
    RonF says:

    And any reasonable observer could see that.

    Any reasonable observer would be in the bathroom or kitchen sink vomiting halfway through that scenario and would not be able to comment on the outcome.

  27. 27
    RonF says:

    Charles S.:

    Both Sailorman and RonF’s examples are phrased as having an active initiator and a passive drunken consentor,

    Actually, no – at least, not in my case. I posit an active initiator and an active consentor, but the consentor ends up not being able to remember whether they were an active consentor or not and later claims they were not.

    VK:

    Where does it say that would be the decision in the policy?

    Ah, whoops – I’m guilty of a bit of a crosspost. In the other thread on this topic I’d put up the scenario of both drunk, one person can’t remember later whether they consented or not and file a complaint and Herschle Ostropoler replied to it:

    But again, if no one “feels raped,” no one goes to the authorities. I suspect a bigger problem than perfectly consensual acts being treated as rape is people who were unquestionably raped, even by a narrower legal definition, having absorbed cultural messages telling them they aren’t entitled to “feel raped.” “Well, I don’t know, I don’t even remember what happened, I may have consented.” That’s clearly a violation of the policy, like SiF’s example, even if you couldn’t get a conviction in court.

    and my comment reflects THAT post (to which I took issue). Sorry. But in any case, the board would seem to be free to make just such a decision if it wished to, and I find that freedom objectable.

    Also in this situation surely there would be witnesses (from the dancefloor) would could give evidence on how drunk B seemed – which becomes a big factor in whether or not it was reasonable for A to believe B had consented.

    Maybe, maybe not. If you’re not blue-blind paralytic drunk* and you’re among a bunch of drinkers it’s amazing how anonymous your state of sobriety can be. A good lawyer would have a field day with taking apart your observation of precisely how drunk someone else at such a party was unless you were yourself hanging out with them a good part of the night.

    * The Night The Old Dun Cow Burned Down, traditional Irish drinking song as sung by The Bilge Pumps

  28. 28
    kot867 says:

    Victims rights advocates just don’t get it……The standard is beyond a reasonable doubt. In order to justify sending someone to jail for 5 years you need powerful evidence. The North Carolina law requires that sort of evidence, of course this standard means some guilty people will go free. It is in the nature of laws to be imperfect.

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