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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.

What Constitutes Consent for Title IX Purposes?

Title IX and the implementing federal regulations do not provide a definition of consent. That means that in every case, to determine whether an individual consented to engage in a particular activity, the question hinges on the definition in the educational institution’s policy manual. 

Definitions can vary from one institution to another. In addition, unlike definitions in state and federal laws, the definitions in school policies will generally not have much if any judicial interpretation on record to help flesh out the definition in particular contexts. Whether a Title IX case is under review in a campus proceeding or has been appealed to a court, it is the school’s definition that matters.

Components of Consent

While every definition is different and may be interpreted in varying ways, they often share common components or phrases. Consent is frequently defined to be:

  • Knowing/conscious/informed: Individuals participating in sexual activity need to understand what they are doing and what they are agreeing to do. They need to have the legal capacity to participate lawfully.
  • Voluntary: Consent must be given freely and not coerced in any way. Some definitions require participation in sexual activity to be “enthusiastic” to meet the consent threshold.
  • Affirmative: Many definitions of consent require consent to be expressed affirmatively and verbally. Others allow for affirmation through actions. Some definitions use the term “active” instead.
  • Mutual: While this is a pillar of some definitions, it is not mentioned in others. Consent seals an agreement and an agreement requires at least two parties, so many definitions may consider the mutuality to be so obvious that it does not need to be stated.
  • Ongoing: Some definitions explicitly specify that consent must exist from start to finish of each activity.
  • Revocable: Consent can be revoked by any party at either time.

Each of these elements can be interpreted with considerable degrees of variation. This can be a source of both frustration and opportunity for those filing or defending a Title IX complaint. Experienced legal counsel can craft persuasive arguments showing how an element was or was not satisfied in the particular instance. However, with no discernible standard of interpretation, officials making determinations of responsibility may apply completely different standards to reach their outcome.

Negative Definitions

The definitions of consent, both in judicial interpretations and in school policies, are often much more clear about when consent does not exist than when it does. For example, the University of North Dakota policies specify that it is impossible to obtain consent:

  • By use of force, threats, deception of coercion
  • From someone who is incapacitated
  • From someone who is asleep or unconscious
  • From someone not old enough to legally consent

The school’s definition section then goes on to list examples of factors that do not constitute consent, such as a history of previous sexual activity or the absence of the word “no.” Overall, under these policies, it can be much easier to make a case that the complainant did not consent than that to prove that the respondent did obtain consent.

Alcohol and Incapacity

All the affirmative words and actions in the world cannot prove consent if the individual stating those words or undertaking those actions is considered unable to give consent due to incapacity. While incapacity can result from a variety of circumstances, the most common source in Title IX cases is the use of alcohol or drugs. 

When do the effects of these substances reach a level that crosses the legal line and removes the ability to provide consent? It is not as simple as a blood alcohol test for drunk driving, or even a field sobriety test.

The definition of incapacitation in a Title IX case, like the definition of consent itself, usually revolves around the words in the institution’s policy manual. These can often be quite vague, particularly in reference to alcohol use. For instance, Providence College policies specify only that “[a]lcohol-related incapacity results from a level of alcohol ingestion that is more severe than being under the influence, impairment, intoxication, inebriation, or drunkenness.” The policies also list some common “warning signs,” but even these descriptions only indicate “possible incapacitation.”

Attorneys in a Title IX case may be able to draw on different sources to suit their desired outcome when helping pursue or defend against a Title IX allegation. Generally, incapacitation involves lacking the capacity to understand the nature and/or extent of a situation. Evidence to prove or disprove capacity can be difficult to obtain and subject to differing interpretations.

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

Can someone consent while intoxicated? 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) 946-2000
or send a message to 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.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.