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Drinking and Consent in Title IX Cases

Drinking is pretty common on college campuses, and so is sex. Unfortunately, it is also becoming common for students having sex to claim later that they were raped because they were too drunk to consent. Then they file a Title IX case for sexual assault.

How does drinking affect a Title IX case? Does it matter whether a student is old enough to drink legally? Can a respondent claim that intoxication made it too difficult to recognize that their partner couldn’t give legal consent? Unfortunately, the answers to these questions can get complicated.

What Exactly is Consent?

One of the biggest challenges with Title IX cases involving allegations of sexual misconduct is that the definition of “consent” can be different depending on the rules set by the college or university. For example, if a student is accused of criminal sexual abuse, a judge would consider whether the person bringing the accusation consented to the conduct under the terms of state law. Some state statutes define consent, while others describe situations that constitute a lack of consent. Those standards can be confusing, but they are at least uniform across the state and subject to interpretation by courts in reported decisions that establish legal precedents.

The same is not true for consent as defined by school rules. At Yale University, for instance, school policies specify that “sexual activity requires affirmative consent,” and consent is defined as a “positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter.” Not far away, at the University of Connecticut, consent requires “an understandable exchange of affirmative words or actions which indicate a willingness to participate in mutually agreed upon sexual activity.” Does a voluntary agreement at Yale require the same exchange of words or actions necessitated under the rules at UConn? No case law exists to show how either of these standards is interpreted.

What Does the School Policy Say About Alcohol?

Just as every college or university establishes its own rules for consent in Title IX cases, those rules usually address alcohol in some way. For instance, the Yale policy specifies that someone cannot consent to sexual activity if they are “incapacitated due to alcohol” or other causes. So in a Title IX case involving these rules, a case could hinge on determining whether alcohol use had rendered someone incapacitated. The policy defines incapacity as lacking “the ability to make or act on considered decisions to engage in sexual activity.”

The rules then specify that if a person engages in sexual activity with someone they know or “reasonably should know” is incapacitated, they are guilty of sexual misconduct. What is the standard for determining when a reasonable person should know that another lacks the ability to make a “considered” decision? And what is a “considered decision” anyway? These vague standards can make it difficult for a student responding to a Title IX case to build a solid defense. The UConn policy, for instance, also states that someone cannot give consent when they are “incapacitated by alcohol,” but the definition of incapacitation refers to the “debilitating use” of alcohol.  

The important feature to realize is that the exact wording of the policies in school conduct codes can be used to argue for or against a violation. Therefore, students filing complaints and students responding to complaints should refer to the specific policy language in their communications.

Can Someone Consent if They’ve Been Drinking?

In the midst of the confusion, as well as the general tendency to establish policies that protect complainants, many people might wonder whether it is ever possible for someone to give legal consent if they’ve been drinking. The answer to this might also depend on the wording of school policies. On a campus where alcohol is banned or in a situation where a student is under the age of 21, schools could establish policies that effectively make it impossible to engage in sexual activity without violating Title IX if alcohol is involved. Again, the wording of the school’s policy is crucial.

While definitions of consent vary between schools, many specify that a person cannot consent if they reach the point of incapacitation. For example, the UConn policy states that “a person is not incapacitated merely because the person has been drinking.” The policy further explains that incapacitation is “more severe” than drunkenness or intoxication. This could make it much harder to argue lack of consent under this policy than under a policy at a school where incapacitation is not defined with as much detail.

Does Intoxication or Incapacitation Work as a Defense to Title IX Complaints?

While it might seem logical that someone who is too drunk to make a “considered decision” about sex is also not going to be able to reasonably know that their partner is in the same state, incapacity is generally not successful as a defense argument. Those who violate Title IX provisions must take responsibility for their actions, whether drunk or sober. In fact, the UConn policy comes right out and says that “Being intoxicated or incapacitated by drugs, alcohol, or other medication will not be a defense to any violation of this Policy.

If both parties claim that the other took advantage of them while drunk, the investigation can almost become surreal. Often schools will try to find who initiated the sexual encounter and determine that the instigator is the one that needed to obtain consent. But there are usually many stopping and starting points in an encounter, and both parties may take turns instigating action.

Defense is Vital When Alcohol is Involved in a Title IX Complaint

Just as alcohol muddles the mind and the memory, it also makes it hard to determine whether sexual conduct crossed the line to be treated as a Title IX violation. Therefore, anyone bringing or responding to a complaint should study the school policies carefully and develop a strategy to support their position based on the wording of those policies. 

Working with an experienced attorney can make it much easier to formulate persuasive arguments and ensure that your side of the story gets fair consideration.

At Duffy Law, we are committed to protecting the rights of students and employees during Title IX proceedings because we know what’s at stake. To find out how we can help in your situation, contact us to schedule a confidential consultation.

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.