NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
By KC Johnson at Minding the Campus
The Education Department’s Office for Civil Rights has been waging a war on campus due process, ordering colleges to change their disciplinary processes to make it more likely that students accused of sexual assault will be found culpable. Many schools, however, have gone beyond the OCR’s demands in various ways, both in terms of due process changes and in terms of dramatically expanding what constitutes a sexual assault. So the chances of an innocent male being branded a rapist are growing.
Broadening what constitutes sexual assault by redefining consent has been a principal goal of “activists”—who have worked with sympathetic faculty and (increasingly) the OCR. The McLeod case at Duke is a particular obvious example of how the new standards might function: two students were drinking and had sex, after which the university concluded that the male student, Lewis McLeod, had committed sexual assault because the accuser could not give consent. Why? Dean Sue Wasiolek explained: Even when both students consumed alcohol, “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” While Duke, in part due to pressure from FIRE, had modified its sexual assault policies in 2011 to more tightly define consent, the McLeod case suggested that Duke’s change was for appearances only.
Minding the Campus staff examined the alcohol-related policies of U.S. News & World Report’s 55 top-ranked universities. The schools fall into three categories: those that bypass the issue entirely; those that link sexual assault to the incapacitation of the victim; and those, troublingly, that have such a vague definition of consent to almost certainly be arbitrary.
The sexual assault policies of four of the top schools, Carnegie Mellon, Texas, the University of Washington, and Tulane, make no reference to the accuser voluntarily consuming alcohol; another school had no clear policies.
The majority of the top schools—32 of the 55—employ an incapacitation standard. The list includes Princeton; Harvard; Yale; Cal Tech; Johns Hopkins; Northwestern; WashingtonU; Cornell; Rice; Notre Dame; Emory; Georgetown; UCLA; USC; Tufts; UNC; Boston College; NYU; University of Rochester; Case Western; Penn State; Cal-Davis; Cal-San Diego; BU; RPI; Miami; Yeshiva; Cal.-Irvine; Florida; George Washington; Cal-Berkeley; and Ohio State. A few of these policies, such as Berkeley’s, Rochester’s, Yeshiva’s, and Penn State’s, have some vagueness, but reasonable people would construe them as not suggesting that having a drink in and of itself can prevent consent. Yale’s language—“consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition”—typifies this group. This standard is similar to that in criminal sexual assault cases.
That leaves 18 of the U.S. News top 55—roughly one-third of the total—that avoid this standard. Instead, at these schools, at least in some instances, a student can be branded a rapist if a college disciplinary panel, by a preponderance-of-evidence (50.01 percent) threshold, determines that the accuser was intoxicated.
In its 2010 letter to Duke president Richard Brodhead, FIRE explained the difficulties with using this criterion: “On the vast majority of college campuses, a great number of students drink alcohol and then engage in consensual sexual activity. While this circumstance may be lamentable, it is undeniable. By failing to make a distinction between drinking to the point of incapacitation and mere intoxication, Duke’s sexual misconduct policy turns what often is an unwise but ultimately personal decision, for which students should hold themselves responsible, into an episode of sexual misconduct subject to official punishment.”
Six of the schools have internally contradictory policies, referencing the incapacitation standard regarding alcohol consumption, but then modifying it elsewhere in the university’s own policies.
In a policy that played a key role in the lawsuit filed against the school by an accused student, Columbia holds that “the use of alcohol and other drugs can have unintended consequences. Alcohol and other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and affirmatively given.” Whatever else this criteria is, it moves well beyond a description of an accuser incapacitated by alcohol.
Dartmouth also claims to punish only according to an incapacitation standard, but then suggests that the “use of alcohol or other drugs can cloud people’s understanding of whether consent has been given (or even sought). A ‘yes’ from an individual who is under the influence of alcohol or other drugs may not necessarily mean ‘consent.’” Obviously an incapacitated accuser could not (by definition of the word) say “yes.”
Three other universities offer similarly confusing policies. Michigan mentions the incapacitation standard, but also has guidelines that suggest having “consumed alcohol” can in and of itself establish incapacitation. At Penn defines sexual assault as “any physical sexual contact with a person who is unable to consent due to incapacity or impairment, mental or physical. ‘Incapacity’ or ‘impairment’ includes but is not limited to being under the influence of alcohol or drugs or being too young to consent.” [emphasis added] But obviously someone can he under the influence of alcohol and not be incapacitated; Penn doesn’t explain the contradiction. And UVA modifies the incapacitation standard through a loophole: “Where alcohol [or other drug] is involved, one does not have to be considered Incapacitated . . . Because Incapacitation may be difficult to discern, students are strongly encouraged to err on the side of caution; i.e., when in doubt, assume that another person is Incapacitated and therefore unable to give Effective Consent.”
Last among this group is Vanderbilt: “Blacking out is an amnesia-like state that may be brought on by drugs, heavy drinking, or intoxication; blacking out is not necessarily incompatible with the ability to engage in simple or even complex behavior. Afterwards the person has no recollection of all or part of the events that occurred during the blackout. There is a distinction between passing out (falling asleep or becoming unconscious) due to drug or alcohol use and blacking out in that a person in a blackout remains conscious and operative.” As with the other five schools, Vandy’s policies reference incapacitation but then go well beyond the term.
A host of other colleges, meanwhile, suggest that intoxicated accusers can’t give consent—without ever defining what constitutes intoxication, or suggesting how it can be measured in a campus disciplinary system in which few accusers request medical attention on the night of the incident.
Two Massachusetts universities, MIT and Northeastern, cite state law as requiring schools to say that an intoxicated woman cannot give consent. (The policies at BC and BU nonetheless describe the incident as sexual assault only if the accuser is incapacitated by alcohol use.) Northeastern’s policy is particularly confusing, since it also holds that “consent cannot be given by someone who is not of sound mind and body. Someone who is drunk . . . may not be able to give consent to a sexual act.” [emphasis added] Does that mean someone who is drunk mayconsent? The University of Chicago is similarly vague, informing students that “use of alcohol or drugs may impair an individual’s capacity to consent freely and may render an individual incapable of giving consent.” [emphasis added]
Wake Forest and Duke, meanwhile, use identical language: “The use of alcohol or other drugs can have unintended consequences. Alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given.” [emphases added]
The McLeod case perfectly illustrate how this vague standard works in practice.
Three schools (Stanford, Cal.-Santa Barbara, and Illinois) explicitly say that a case with an “intoxicated” accuser can lead to the accused student being branded a rapist. But the guidelines don’t say what constitutes intoxication, or how an accused student can defend himself to prove that the accuser wasn’t intoxicated. At William and Mary, consent “can only be given by someone in an unimpaired state of mind who is able to understand what is happening; consent is not valid if the party from whom consent is sought is impaired by the use of alcohol or drugs, if the party is asleep, passed out or unconscious.” How much “impaired” is too much William and Mary doesn’t reveal.
Wisconsin is unique among the 55 schools, in that it explicitly recognizes claiming sexual assault as a way for a student to avoid facing campus charges for alcohol offenses: “In those cases where a student has been a victim of sexual assault and/or violent crime while under the influence of alcohol, neither the Dean of Students, University Housing nor UW–Madison Police will pursue disciplinary actions against the student victim (or against a witness) for his or her improper use of alcohol.”
Finally, there’s Brown, which is unique in another way. It suggests that an accused student having consumed alcohol, in any amount, and even if he is 21 or over, will be used against him: “Sexual Misconduct encompasses a broad range of behaviors, including acts using force, threat, intimidation, or advantage gained by the offended student’s mental or physical incapacity or impairment of which the offending student was aware or should have been aware. A charged student’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than a mitigating circumstance.” [emphasis added]
Readers who follow the issue doubtless will notice that many schools in this third category of broadening the way in which alcohol can be used to establish a student’s guilt (Brown, Stanford, Duke, Dartmouth, Columbia) all have checkered records regarding general due process in campus sexual assault cases.
Two final thoughts. First, even at the third group of schools, obviously every time two intoxicated students have sex, the male student isn’t brought up on campus charges. But at many of these institutions, the role of alcohol in establishing consent is so vague as to at least, on paper, deem as rape acts that few outside of campus would consider sexual assault.
Second: given the efforts of “activists” to broaden the definition of consent, it’s likely that three or four years from now, there will be many more schools in the third category, making it more likely that more innocent students will be brought up on charges.