Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

one of the reasons the law tries not to define the amount of alcohol 
necessary to undermine consent is that this is usually a jury question 
--

in many states, the jury is instructed that they can consider the 
intoxication of the victim and determine ONLY for the purpose of 
determining whether she capable of knowing, intelligent and freely 
giving consent

some states don't use the "knowing intelligent and freely given" 
standard, though this is what should apply as it is the typical 
standard to determine, for example, whether a perpetrator lawfully 
consented (waived his fifth amendment rights) to an interrogation

the idea that we should care about the mindset of the aggressor is 
problematic and no school should indulge a standard that asks whether 
the perpetrator was AWARE of the victim's intoxicated state -- it is 
extremely harmful to allow the knowledge of the perpetrator to have any 
weight in assessing harm because to do so would create an inverse 
relationship between the freedom of the recipient of harm to determine 
exclusively whether to allow intimiate contact --

put another way -- the more weight we give the mindset of aggressors, 
the less free victims are as a class b/c their freedom will always be 
balanced against the mistaken state of mind of the harm-doer - -

the individuals do not stand on equal moral footing

only one person has liberty/freedom at stake -- it is the person who 
receives unwanted contact

the aggressor has no liberty/freedom at stake -- only an 
entitlement/expectation of sexual access - this is not worthy of 
protection under law -

thus -- the issue should not be -- "did the perpetrator know the victim 
was drunk" -- the state of mind of the perpetrator must always be 
absolutlely irrelevant if the goal is to preserve the autonomous 
decision-making ability of all students to determine when and under 
what circumstances another person is authorized to have intimate 
contact with them --

(a few states have this wrong and they DO ask about the state of mind 
of the perpetrator -- reformers are fighting to fix this)

it's ultimately an issue of "who bears the burden" and on this point, 
schools should be clear that if a student is unsure whether  they have 
obtained freely given permission to act -- THE AGGRESSOR, alone, bears 
the risk of punishment if they get it wrong -

when i teach this idea -- i urge students to think about whether they 
are exploiting or taking advantage of a person's condition -- and if 
they sense this is what's happening -- it might NOT be rape -- and it 
might never be reported --  but they need to know that the one who 
takes advantage assumes the risk that it MIGHT be -

other reformers argue that all sexual contact with a person under the 
influence should be a crime (of course, if it isn't reported, it's a 
tree falling in the forest non-issue) - and this idea is gaining 
momentum -- my position falls a bit shy of this idea but runs close

the bottom line theoretical support for this strict liability approach 
makes perfect sense in the context of criminal behavior (as opposed to 
civil tortious harm where blame is often shared between the parties and 
reflected in compromise verdicts) where the law NEVER judges the victim 
-- (i'm not saying jurors don't do it - only that the law, in theory, 
forbids it) and for good reason -- we never want a criminal legal 
system that places certain "types" of people at risk of violence -- 
thus, behavior we might see as a liability, in crminal law - is only 
either irrelevant or a vulnerability

rape law in practice has never gotten this right -- though we have 
always understood it in other contexts -- (if you're not sure you have 
permission to be in my home or take my money -- you WILL be punished 
even if you made a mistake about having permission -- we're clear in 
the law that the intruder or the taker bears the risk -- but we get 
confused when the concept is applied to takers of women's bodies -- but 
it's not complicated at all -- indeed, it should be even clearer 
because bodies are far more important than houses and stuff).

wendy murphy