First, the idea that it’s difficult to tell when there’s consent. Careful people take the time to make sure their partner is consenting. I’m married and we STILL make it clear whether this is just a little making out or if we’re going to have sex. When you know each other well, of course it’s easier to read each other and not have to feel like you’re making appointments to fuck. But what’s so hard about asking someone, “Do you want to have sex?” Straightforward communication is just not that difficult.

Second, the idea that if the woman doesn’t use the word rape it’s not rape. As I think you’ve probably said here many times, rape victims have a difficult time using the word rape, for the very reason that people will instantly start acting like you’re over-reacting. Personally, I find it hard enough to say sexual assault, and I usually end up saying non-consensual and then not saying sex because rape isn’t sex, it’s violence.

The alcohol thing seems to me like you can make it as simple as the consent thing. You can choose to simply never drive when you’ve had any alcohol. This keeps you from having to try to make a judgment call when you’ve been drinking. What we do is pick a designated driver before the first drink. Simple. In the same way, you can decide that you will simply never have sex with someone who is not your regular partner when you’ve been drinking or they’ve been drinking. I’ve been in a situation with a guy where I was drunk and he knew it and although we’d dated a few times, it was going to be our first time, and he said to me, no, listen, let’s wait for this until I can know you’re really sure. And you know what, the next day I was even more sure because I had so much respect for him for that.

Obviously I’m preaching to the choir, but I just want to add my agreement about this.

I also think that Kristen raised some interesting points, and as we know, justice for victims is very hard to come by. I guess that the question is how to reconcile to two — prevention/education and justice — without one undermining the other.

Something I’ve learned from talking to survivors is that focusing on enthusiastic consent and asking them whether they said yes can help a lot. Most people have been asking them whether they said no, and a lot of them feel guilty for not protesting “enough” (actual quote: “well, I was kind of passing out and waking up, but I didn’t say no”) Switching the responsibility to the perpetrator makes a big difference, both in the survivor’s state of mind and in their willingness to have their attacker held accountable.

Fair enough.

As for your question, I think it’s an excellent and entirely fair one. And I’ve been trying to find time all afternoon/evening to get around to answering it, but have failed. I will try that again tomorrow morning.

Of course a person can know that another is incapable of consent…but that is a very vague test in its application. Three drinks is a concrete test. Unable to walk in a straight line is a concrete test. Incapable of consent? Not so much particularly when most people don’t know what “consent” looks like (i.e., the asshat above who thinks “not fighting” equals consent).

I’ve dragged more than my fair share of friends (both female and male) half naked and half conscious out of frat parties to know that frequently those involved are frequently not sober enough to negotiate the subtleties.

So here’s the question…if you were a university administrator dealing with the aforementioned problem, today, how would you craft university policy to deal with it?

But that’s a minor quibble. I agree with you on most of the rest — but with those cases, we’re talking serious intoxication. The person drunk to the point of doing the things you describe is clearly in a different state than the person who has a couple of drinks and sits around laughing and telling stupid stories. There are levels of intoxication, and I believe that at many of them you can still fully consent. I’m guessing the point behind the law is that they don’t expect people to carry around a breathalizer — but it takes away the responsibility to gain enthusiastic consent, and that’s a lesson that carries over to situations where alcohol is not involved.

As for the Mass law, I’m pretty sure that you’re mistaken about that one. A court upholding the law doesn’t mean that it can’t be changed — it just means that it’s legally fine the way it is (even though in this case it’s clearly not). And in any case, I don’t believe for a second that a person can’t know that a sexual partner is incapable of consent, but that’s a whole other story.

My point is that of course universities can and should create sanctions to provide their students with protection — but I don’t think that this particular rule is helping anyone, and it’s only adding fuel to the bullshit “women lie about rape”/”she wasn’t really raped” fire. Though I have absolutely no belief that it would somehow increase false rape reports, I do know that it would increase the case for arguing that it has. I’m glad that the university is trying to do something, but they also need to do it properly in a way that actually reflects the nature of true consent.

I think we’re coming from two completely different perspectives on how alcohol effects judgment. People knowing they’ve been drinking still get behind the wheel of a car because they don’t think they’re that drunk. They streak naked down trafficky road. They stand out on the freeway singing random songs. They pick fights with people 5 times bigger and meaner than they are. Indeed the stated purpose of many people when they drink is to reduce their inhibitions…i.e., suspend their better, more rational judgment. This is my recollection of drunken college parties.

I think we can create brightline rules that say if you violate them you’re asking for trouble. I agree that the way BSU has worded their consent clause is not optimal, but I see what they’re trying to get at.

But to the point…the hypothetical victim…under many state statutes would not have been raped as defined by the law since either (1) she did not indicate her lack of consent (see NY) or (2) he did not know that she was incapable of consent (see Mass.)

We can’t fix that law. The Mass rule was just upheld two months ago. But universities can create sanctions just like they create some sanction and provide their students with some protection.

2. I agree, but the standard that any person who is intoxicated to any degree cannot consent is also not a reality. And do you think that anymore than 20% of people would agree with it? Why should we work towards a shitty solution rather than the desirable one?

3. The victim technically does have protection under the law, and this rule doesn’t increase that protection. We’re talking about school policy, not legislation. In this case, it may be easier to get a school to reprimand a rapist, but he’s still not going to go to jail. Your scenario above is rape in the eyes of the law — the trouble is getting enough people to believe her to get a conviction.