One more issue that the so called Yes Means Yes California statute on sexual assault in colleges raises is how sex between people who are intoxicated is regulated. (For my earlier discussion of the statute, see here.)
The statute requires colleges to adopt:
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
These provisions address two aspects of intoxication. One involves a situation where the intoxication of the accused led him or her to conclude that the complainant had affirmatively consented. The other involves a situation where the the complainant appeared to affirmatively consent, but was unable to do so because of intoxication.
Clearly, the statute treats the intoxication of the complainant and the accused quite differently. If the accused’s belief in the complainant’s consent was due to his or her intoxication, that’s tough. By contrast, the apparent affirmative consent of the complainant does not count if the accused reasonably should have known the complainant was intoxicated and unable to consent.
So imagine two people have a sexual encounter. They are both equally intoxicated. If the complainant was intoxicated, he or she is not held responsible for it (in the sense that she can still claim to have been sexually assaulted). But if the accused was intoxicated, he or she is held responsible for not securing the requisite affirmative consent. To put it crudely, if you are the complainant, you can get drunk and not lose your rights. In fact, your partner must protect you. But if you are the accused, that you got drunk is no excuse.
This asymmetry may or may not make sense as a policy matter. But it does have an important consequence – both parties to a sexual encounter that goes wrong will desire to be the complainant. Put differently, if two intoxicated parties have a sexual encounter, it may turn out that they have sexually assaulted one another.
Suppose Bill and Sally are both intoxicated. Both should have known that the other was sufficiently intoxicated that they could not consent to the sex. If Sally complains, then Bill has sexually assaulted her. But if Bill complains, then Sally has sexually asssaulted him.
One might wonder whether this is really true. What if Bill is the initiator in the sense that he makes the first move to kiss Sally, and then continues to make the first move at each step in the encounter? I don’t think this matters under the statute. First, the statute does not say that one needs affirmative consent only if one is the initiator; it says one needs it for any sexual activity. Second, it seems clear that if Sally were drunk and put the moves on Bill, he would still be in violation of the statute if it were clear to him that Sally was too intoxicated to consent.
If my analysis is correct that a man and a woman who are intoxicated sexually assault one another, then this has implications for how one would expect a man to respond to a complaint of having sexually assaulted a woman, when both parties were intoxicated. The man will not simply defend on the basis that the woman was not intoxicated; he will also argue, in the alternative, that he was intoxicated and therefore sexually assaulted by the woman.
This has the potential to equalize the leverage in these cases. Perhaps the woman will withdraw her complaint. Perhaps the women will not bring the complaint in the first place, if she knows that she might be charged. Of course, the ultimate power will turn on the college adjudicators, who might choose to believe the woman and not the man. Nonetheless, this potential for mutual charging brings a new dimension to these cases, one that the parties and the adjudicators have to consider.