Free sex on campus

According to documents filed in Los Angeles Superior Court last year—which include text message records, witness statements, a police report, and Occidental disciplinary notes—on Sept. When John made it back to his dorm, he launched a dance party in his room, and Jane stumbled in.

7, 2013, Jane was downing vodka and orange juice while playing drinking games in a friend’s dorm room. According to witnesses, who would be asked to recount the night’s events after Jane filed a sexual misconduct claim against John with the school, Jane “was grabbing John and trying to kiss him”; John was “somewhat responsive” but “seemed pretty indifferent.” But he was also “loud, obnoxious, kind of pushing everyone, going nuts a bit,” slurring his words, and at one point, attempted to move everyone but Jane out of the room. Jane eventually snuck out of her room, past her friends and her resident adviser, and made her way to John’s room, where she performed oral sex on him (which Jane says she remembers doing, but John says he can’t recall) and they began having sex (which both later said they didn’t remember).

So, many schools, like Occidental, have adopted a higher threshold, forbidding sexual contact, including kissing, oral sex, and intercourse, with anyone who is “incapacitated.” That’s the line favored by Brett Sokolow, the man who’s emerged as the country’s leading consultant on campus rape adjudications.

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Most people would probably regret that particular decision, but it’s hard for me to define that as rape.” Most colleges don’t have “rape” policies—they have “sexual misconduct” policies, outlawing a wide range of nonconsensual activities in a way that may or may not match up with local laws.

Florida State University, for example, defines “sexual misconduct” as “Any sexual act that occurs without the consent of the victim, or that occurs when the victim is unable to give consent,” including situations in which a person is “under the influence of alcohol, drugs or other substances (including but not limited to prescribed medications).” Beloit College “requires a non-intoxicated, verbal, mutually understood ‘Yes’ for sexual contact or intercourse to be considered consensual.” Those are pretty broad definitions, given that, for instance, a huge number of FSU students are likely to be under the influence of alcohol, drugs, or prescribed medications during sex.

It’s politically expedient to claim that there’s a clear line between consensual sex and rape, but the truth is that in cases where a victim’s intoxication is the sole indication that an assault has occurred, the distinction is hard to draw.

I’m not talking about “gray rape,” the term Laura Sessions Stepp weirdly coined in in 2007 to refer to incidents that are clearly rape but that victims refuse to label as such out of shame, self-blame, or coercion.

But, a week after the incident, Jane filed a complaint against John with the school.

John was ultimately found in violation of Occidental’s sexual misconduct policy, which forbids students from having sexual contact with anyone who is “incapacitated” by drugs or alcohol.

When I asked a dozen college students around the country to draw their own lines between drunken sex and sexual assault, I got 12 different answers.

One male senior at Florida State University told me, “The only absolute line should be if the victim is completely unresponsive”; a female senior at FSU said, “The level should be at totally sober.” A woman at the University of Chicago said that “any level of intoxication where someone won’t remember their decisions is a clear-cut criminal act” while a male FSU student countered that “I don’t think it’s OK for the drunken male to be threatened with charges if, during the moment, she reciprocated the action.” A female senior at Grinnell College told me that it’s better for both parties to be equally intoxicated: “I think that both people should be at the same level of (un)drunkenness for things to be OK—if you’re tipsy, then I should be tipsy; if you’re sober, then I should definitely not be drunk.” A male senior at FSU agreed, saying, “If one person is drunk and the other is sober, that is not OK.

In doing so, they’ve been forced to confront a host of philosophical, moral, physiological, and practical questions—none of which have easy answers.

Last year, my colleague Emily Yoffe recounted the Occidental case in a piece arguing that college sexual assault disciplinary processes infringe on the civil rights of men.

That’s taking advantage of a situation in a way that I would argue as being rape.

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