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Does Title IX Apply if Both Parties Were Under the Influence of Alcohol?

Title IX of the Education Amendments of 1972 protects those who belong to certain education programs from discrimination based on sex, which includes both sexual harassment and sexual violence. Under the terms of Title IX, sexual encounters that take place without consent qualify as sexual assault. However, determining whether a party consented to sexual activity at a later date can be a complicated undertaking, especially when alcohol is involved, so if you were the victim of sexual assault and either you or your partner were under the influence, it is important to contact an experienced Title IX sexual assault lawyer who can explain your legal options and help defend your interests.

Sexual Violence Under Title IX

Title IX covers all forms of sexual harassment, which includes sexual violence, or physical sexual acts that are perpetrated against a person’s will or while a person is incapacitated or otherwise unable to give consent. All covered educational institutions and programs have their own definitions of consent, but most require that consent be informed, voluntary, and mutual. This means that a person can never consent to a sexual activity if he or she is unconscious, asleep, or impaired to such a degree that he or she is incapacitated, which means that the person in question lacks the capacity to rationally and reasonably appreciate the nature or extent of a sexual act.

How Alcohol Use Affects Title IX

Title IX protects students from all forms of sexual harassment, including sexual violence or a physical sexual act that is perpetrated against someone’s will, without his or her consent, or while that person is incapacitated. Incapacity, while it can result from a developmental disability or involuntary physical restraint, when it comes to college campuses, it is most often the result of the ingestion of certain substances, namely drugs and alcohol. For this reason, alcohol use often plays a key role in many campus sexual assault allegations. Unfortunately, the line between mere intoxication and incapacitation can be difficult to discern, which can make determining whether a person gave or obtained consent to a sexual encounter a complicated process.

It’s important to note, however, that using drugs or alcohol does not, in and of itself, automatically negate an individual’s ability to provide consent. Instead, a person can be said to be incapacitated by drugs or alcohol if the level of ingestion of the substance is more severe than merely being under the influence, being impaired, or being intoxicated. Common warning signs of potential incapacitation include incomprehensible or slurred speech, an unsteady gait, vomiting, incontinence, or unconsciousness.

Ultimately, a person who is physically and mentally incapacitated as a result of alcohol or drug consumption, whether voluntary or involuntary, is incapable of giving consent to sexual activity. Furthermore, a person who knows or should reasonably have known that someone else was incapacitated cannot engage in sexual activity with that person under Title IX.

Can the Fact that Both Parties Were Under the Influence of Alcohol be Used as a Potential Defense?

Under Title IX, if a person’s ability to consent to a sexual act is impaired due to a mental or physical condition, including incapacitation, and someone else is aware of that impairment, but continues to engage in a sexual act, the latter could be found guilty of committing sexual assault. Unfortunately, the law does not similarly address situations where both parties who were engaged in the sexual encounter were incapacitated, so when making a ruling in these cases, schools will often look to the specific details of a case to determine each party’s level of consent at the time of the encounter and will ultimately use their judgment when making a decision involving two intoxicated students.

In recent years, however, it has become increasingly clear that it is often the party who first reports the offense that will be given the benefit of the doubt, even when both individuals were intoxicated at the time of the sexual act. A court recently clarified that in these cases, it is discriminatory for a school to choose to discipline only one student after determining that both were intoxicated when they engaged in sexual activity even if only one student reported the encounter.

Even when two parties both argue that they were intoxicated at the time of a sexual encounter, schools often attempt to determine which of the individuals initiated the act, claiming that it is the initiator who is required to obtain consent. In some cases, determining who instigated a sexual act is clear, but in others it is more difficult, especially if the facts reveal that there were actually several initiation points during such an encounter, each of which was instigated by one of the parties.

Signs of Predation

When it comes down to it, sexual assault cases that involve alcohol are usually more difficult to resolve because the memories of both parties are often compromised. For this reason, schools that find themselves in this position are strongly encouraged to focus their inquiries on the parties’ behaviors and look for signs of predation, such as:

  • Following the victim to bed after he or she goes to sleep;
  • Taking measures to control a situation so as to overcome a victim’s will;
  • Isolating or lying to the victim;
  • Encouraging the victim to become intoxicated;
  • Taking measures to select someone to victimize; and
  • Exhibiting a history of similar behaviors.

This type of evidence is often enough to overcome a person’s defense to sexual assault accusations on campus, even if both parties were intoxicated at the time of the incident.

Contact Our New Haven Office Today

If you were recently assaulted on campus or at a school sponsored event, please call (203) 935-8835 or send a message to inquiry@duffylawct.com today and a member of the Title IX sexual assault legal team at Duffy Law will help you set up an initial consultation with one of our experienced attorneys. We are available to answer your questions and concerns via phone or online message 24 hours a day, seven days a week, so please don’t hesitate to contact us at your earliest convenience.

Christine Brown

Christine Brown

Attorney At Duffy Law

Christine Brown has a comprehensive understanding of Title IX and how it impacts students, faculty, and staff on college campuses. Before joining Duffy in January of 2020, Christine held the dual roles of Director of Legal Services and Title IX Coordinator at Fairfield University, where she was responsible for developing the school’s Title IX policies and due process procedures. She presided over hundreds of university matters including dozens of Title IX hearings and conduct code violation claims ranging from sexual assault to hazing to racial bias.
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