‘It’s an impossible standard to challenge’
A few years ago, New York imposed the “affirmative consent” standard in campus sexual misconduct proceedings. It shifted the burden of proof to accused students – nearly always male -making it functionally impossible for them to defend themselves.
For example, if his accuser consumed alcohol and then had sex, the accused would have to prove the accuser could consent while intoxicated. Because colleges have a tendency to render “incapacitation” as “drunk,” this common sexual scenario on campus – both parties intoxicated – becomes rape by definition.
The same governor who pushed through the affirmative consent standard now wants to force everyone to abide by this campus regime.
Democrat Andrew Cuomo wants to close what the Associated Press calls a “loophole” in state law, that a voluntarily intoxicated person who is conscious can legally consent to sexual activity. This concern was brought to him at the behest of Manhattan District Attorney Cyrus Vance:
New York law currently says someone who becomes drunk voluntarily is not deemed “mentally incapacitated” when it comes to giving consent. The statu[t]e does cover victims who become unconscious or are administered drugs or alcohol without their consent.
District attorneys have said the current law allows defendants to claim sexual activity was consensual even when a victim was too impaired to know what was happening.
How would the law define “too impaired”? Neither Cuomo nor Vance, who declined to arrest and prosecute Harvey Weinstein, gives an explanation.
The AP cites an earlier New York Senate bill that would set the liability threshold at whether a “reasonable person” should have known his partner was too impaired to consent. Cuomo’s bill, planned for next year, will reportedly be similar.
You don’t have to guess what results this threshold will produce. Consider that a Title IX official judged that a “rational” woman would never consent to a threesome, according to a lawsuit recently approved by a federal judge.
A California appeals court held earlier this year that a female student’s own text messages – which show her plotting to have sex with a male student against her friends’ wishes – do not prove she could consent.
New York criminal defense lawyer Scott Greenfield eviscerated both Cuomo’s plan and the AP’s shallow reporting in a blog post. He had earlier noted that Vance apparently warned of the “loophole” to explain his decision not to prosecute cases of alleged rape victims who were drunk.
This “loophole” – that drunk and incapacitated are not synonymous – means that “it’s a law working the way it was intended and someone doesn’t like the outcome”:
The problem, for the hard of thinking, is that incapacity at least offers some basis to challenge a post-hoc claim of lack of consent by evidence that a woman could walk, talk, text on her smartphone and generally function. If she could perform ordinary tasks, then she was not incapacitated and, like any other person, was capable of consenting to sex.
But drunk? Not incapacitated by alcohol, but just plain old Saturday night drunk? It’s an impossible standard to challenge. …
She may have enthusiastically consented. She may have initiated sex. Tough nuggies, she had a few drinks so now you’re a rapist. After all, she says so, and it’s a loophole, as it prevents us from “believing the woman” and instead relying on facts.
If Vance and Cuomo extended this logic of holding a person blameless after becoming intoxicated, they would create moral hazard, Greenfield continues: “Rob a store? Get drunk first, and it’s not your fault.”
The result of the proposed law is “the government treating women like fragile, helpless creatures” and opening “a Pandora’s Box of problems” in law enforcement when it comes to crimes accompanied by intoxication, Greenfield says.
As Ashe Schow of The Daily Wire notes, it’s a popular campus sentiment: Duke University’s dean of students once testified that if both parties are drunk, “it is the responsibility in the case of the male to gain consent before proceeding with sex.” (Duke settled when a judge sent the lawsuit to a jury.)