The Cincinnati Enquirer recently published a well-sourced piece on campus sexual assaults (often referred to as Title IX cases) titled “The Sex Talk: The conversation that is not happening about campus sexual assault.” As a Title IX Lawyer, I appreciate the attention that the authors of the Enquirer article and its participants brought to the many issues surrounding Title IX cases. One area that could have used more attention in the Enquirer piece, however, is how to handle cases where both parties are equally intoxicated, and where neither party alleges that the other party used force, threat of force, or purposeful incapacitation (i.e. attempt to drug/over-intoxicate the other party). Some might call this the *consensual* “drunken hookup.” Solving the puzzle regarding the *consensual* drunken hookup is at the heart of creating a fair and constitutional Title IX process.
By way of background, schools such as Miami University have policies that say that regardless of what you say or do, you cannot consent under any circumstance if you are severely intoxicated1 at the time of sexual activity.2 In the law we call this a “strict liability” offense, meaning that your intent does not matter–if you did it, you violated the rule (i.e. speeding). In my experience the punishment for the strict liability offense of having sexual contact with someone deemed to be “severely intoxicated” is almost always suspension or dismissal. Suspension or dismissal is then noted on the student’s permanent transcript3 along with a permanent notation that the punishment was for sexual assault or misconduct.
Now for the critical question: if both parties are equally “severely” intoxicated, and if the policy is strict liability, should the school not find both parties responsible, and punish them the same way? Title IX lawyers will tell you that this does not happen and that instead only one party is suspended. Why? Under what rationale? I have yet to hear a reason that makes sense under the disciplinary codes as written.
Federal courts have started to catch on to this problem utilizing the legal concept of “equal protection”:
Male student plausibly pled that director of public university’s office of ethics and student conflict resolution violated his rights under Equal Protection Clause by alleging that director had received report that both he and female student had engaged in non-consensual sexual acts against each other, in violation of university’s sexual misconduct policies, but chose to pursue disciplinary action against him only.4
The participants in the Enquirer piece had a range of opinions: at least one said that alcohol should NEVER be consumed in conjunction with sexual activity, while others including administrators of Title IX policies at universities, indicated that it was difficult to determine where to draw the consent line when it comes to alcohol and sex.
That line may be difficult to draw, but it must be drawn clearly, fairly, and realistically if we are to achieve fairness for students at our colleges and universities.