The concept of sexual consent is designed to be unambiguous. According to this year’s Consent Agenda orientation presentation, “consent is a clear statement about your intentions and desires” that must be obtained before any sort of sexual interaction. The recent Project Unbreakable Board in Lowry pit proclaims, “there’s no blurred lines when it comes to consent.”
Yet the involvement of alcohol makes matters of consent if not blurred then certainly complicated. Definitions of sexual consent usually contain a clause stating that consent cannot be given if the consenting party is impaired — or influenced or incapacitated or disinhibited, depending on the source — by the consumption of alcohol. In other words, alcohol can, under the right conditions, render consent invalid. Here is where the disagreement sets in; definitions differ in how they draw the line.
This article seeks to identify the point at which intoxication invalidates consent; when does “yes” no longer means “yes?” This question has three components. First is the legal dimension; under certain conditions, sexual activity with a drunk person violates Ohio law. Second is the institutional dimension; college policy has its own definition of sexual assault, including a section on controlled substances. Third is the ethical dimension; people’s individual moral codes might differ from or go beyond the legal and institutional prohibitions.
Fully understanding the interaction between alcohol and consent is crucial to lowering the rate of sexual assault. Although the effect of controlled substances can seem like only a small part of the overall concept of consent, it deserves special emphasis due to the regularity with which sex and alcohol mix in our culture. Alcohol is involved with nearly every case of sexual assault on campus, according to Secretary of the College Angela Johnston and Senior Associate Dean of Students Carolyn Buxton. The vast majority of perpetrators aren’t malevolent strangers hiding in the bushes; rather, they are friends or acquaintances who don’t respect — nor perhaps even recognize — the lines that they are crossing.
The Ohio Revised Code states that sexual contact or sexual conduct (any form of sex or penetration) turn into assault if “the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition [including intoxication] … and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired” in such a way (§ 2907.02.A.1.c).
The key phrase in this law is “substantially impaired.” How drunk does someone have to be for the law to consider him/her “substantially impaired?” To find the legal definition of this phrase, one must turn to the Ohio Jury Instructions. This separate document reveals that “‘substantially impaired’ means a present reduction, diminution or decrease in the victim’s ability either to appraise the nature of his or her conduct or to control his or her conduct.”
If this still sounds vague, that’s because it is.
“There’s no hard-and-fast rule,” said Ryan Shafer, a criminal defense lawyer with the Joslyn Law Firm in Columbus. “It’s really [on] a case-by-case basis.”
Shafer explained that different cases rely on different forms of evidence to try to prove substantial impairment. Verification, especially from eyewitnesses, that the complainant was drinking heavily could be enough to establish substantial impairment. So too could outward symptoms of drunkenness, such as stumbling, vomiting and slurred speech.
“To say one drink invalidates any consent is definitely not true,” said Shafer. “I don’t know where that [impression] comes from.”
Shafer also emphasized that recognizing substantial impairment and proving it are two separate tasks. In a criminal case, where allegations must be proven beyond a reasonable doubt, the available evidence is usually not enough to validate claims of substantial impairment.
“It’s very, very, very hard to prove [substantial impairment] in most circumstances, unless you have a lot of evidence,” Shafer explained. “[It’s] a very high standard to prove that someone could not give consent.”
The 2012-2013 Scot’s Key, the latest edition of the College’s handbook of student policies, states that sexual contact or conduct turns into sexual assault if “judgment is impaired by the use of drugs, intoxicants or controlled substances.”
Again, this policy does not prohibit all intoxicated students from having sex. Rather, the administrators who enforce this policy look for signs that alcohol was noticeably impairing judgment.
“People can drink alcohol and still be capable of making sound decisions,” said Johnston. “It’s really at that point where they had too much alcohol or drugs that, to a reasonable person, [they were] incapacitated.”
Just like legal investigators, Wooster administrators consider both the amount of alcohol consumed and the behavior displayed, with perhaps a greater emphasis on the latter. Warning signs include vomiting, stumbling, passing out, blurry eyes and lack of memory.
“There are no red lines,” said Lynette Mattson ’08, a writing center associate and longstanding member of the judicial system (dating back to her days as a student), “because circumstances change from one case to the next.” Evidence available in one situation, such as whether the complainant could carry a coherent conversation, might not be available in others.
Although the Ohio Revised Code and the Scot’s Key use different wording, especially the contrast between “impaired” and “substantially impaired” judgment, Johnston holds that they are getting at the same thing. College policy does not regulate sexual conduct more stringently than does the State of Ohio.
Legal and institutional policy do diverge, however, when it comes to the burden of proof. While criminal courts use the reasonable doubt standard, the College goes by the preponderance of evidence, a phrase that the Scot’s Key leaves undefined but is generally understood to mean that cases are decided based on what’s more likely than not. Therefore, the College can conclude that judgment was impaired in situations where there would not be enough evidence to satisfy a criminal court.
It is also worth noting that the College’s sexual assault policy might soon change. The administration, in consultation with the wider college community, is considering whether to adopt the ATIXA (Association of Title IX Administrators) Gender-Based and Sexual Misconduct Model Policy, a document hailed by the national group of lawyers and college administrators who created it as best practice for higher education institutions.
Rather than using the term ‘impaired’ — substantially or otherwise — the ATIXA model policy uses ‘incapacitation’ to describe the point at which a drunk person could no longer give consent. ATIXA in turn defines incapacitation as “a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the ‘who, what, when, where, why or how’ of their sexual interaction).”
“We only use the term incapacitation… because incapacitation comes to the closest that we can get to a medical certainty of an individual not being capable to freely, willingly and knowingly consent,” explained Saundra Shuster, a lawyer on the ATIXA advisory board.
“We’re going to hold people accountable who have the capacity to consent,” she continued, “even if that capacity was mitigated to some degree by consumption of drugs or alcohol.”
Wooster’s administrators do not believe that this possible change in policy will influence what is and what is not permitted on campus. Instead, they maintain that the ATIXA policy is merely clearer and uses less legal language than does the current Scot’s Key.
Regardless of the specifics of its official policy, what the College prohibits is very different from what it advises. During orientation’s Consent Agenda presentation, the class of 2017 was told that “sometimes we are not able to give our agreement if we are silent, asleep or under the influence of any substance.” The presentation went on to say that bystanders should step in if their classmates cannot “give a sober yes.”
This presentation was written by Longbrake Wellness Center’s Coordinating Counselor Ray Tucker and Counselor Anne Ober and then reviewed by members of the administration as well as the student sexual advocacy group k(NO)w before the presentation’s debut at orientation.
Tucker and Ober later expanded on the advice they gave to the incoming class.
“It’s [about] a sober yes or a sober no,” said Tucker. “It’s basically if you’re under [the] influence of any kind of drug, alcohol or substance, you cannot… give consent, under any circumstance. That’s it… It’s separating sex and alcohol. They’re two different things that shouldn’t cohabitate with each other.
“Alcohol will always raise your impulsivity and lower your inhibitions,” Ober added, “which is the combination you don’t want necessarily with sexual activity.”
Prohibitions aside, many people develop their own standard for how to act in social situations that mix sex and alcohol.
Buxton advises students to not do anything while under the influence of alcohol that they wouldn’t do when sober.
“This is the parent in me, the grandparent in me; you have to use common sense, sound judgment,” she added.
“The best advice that I have is for college students to conduct themselves with a degree of self-awareness,” said Mattson. “Which isn’t to say don’t have fun, don’t go out and have parties, but … be aware of how quickly those circumstances can devolve, particularly when alcohol is involved.”
“Ask. Ask again,” suggested Tucker. “Ask on the way. Ask when you get there. Make sure. Give yourself every chance to make sure you know what you’re doing.”
According to Gina Christo ’14, a founding member of k(NO)w, the troubling connection between alcohol and sexual assault won’t go away without a fundamental cultural shift.
“[A] very conservative and abstinence-only understanding of sex [leads] to people feeling like they can only engage in sex when under the influence of a substance,” Christo said. “I am in no way being critical of people who have sex after drinking. But what I am saying is that we need to create a culture of sexuality in which people feel like they are free to communicate their desires without having their inhibitions lowered with substances.”