Too Drunk to Have Sex?
John and Jane (not their real names) were students at Occidental College. They both got blitzed one night, and had sex. According to this Slate account, witnesses to the pre-game festivities observed both of them, drunk as hell, fooling around; Jane was the sexual aggressor, all agreed. Friends took Jane back to her room, but after they left, she sneaked back into John’s room, after asking him via text if he had a condom. As the two were getting busy with it, another student knocked on the door and asked three times if Jane was okay; three times, Jane said yes. Another student, one who had been trained in sexual violence awareness, opened the door, saw them having sex, and was satisfied that this was consensual.
But then:
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.”
Note that the facts of the case are not in dispute. Given that set of facts — both incapacitated by drunkenness — what kind of justice faults the man here? More:
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.
Heads the drunk woman ends, tails the drunk man loses. This is completely unjust, and yet another reason why campus officials have no business determining guilt or innocence in these cases. This empowers the female partner to charge her male partner with rape if, after the encounter, she wishes she hadn’t done it — even if he was as drunk as she was.
So what we’ve come around to is a 21st century, legalistic, feminist view that a man must always be expected to behave like a Victorian gentleman, while the woman can behave exactly as she pleases, and destroy his college career by a mere accusation. Because he is a man and she is a woman, and as Cheryl Abbate has told us, women cannot be sexist because they do not have power (“Being sexist entails that one has institutional power over another group. Since women do not have institutional power over men, by definition, they cannot be sexist toward men.”)
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