By Jackie Gharapour Wernz, ECR Solutions PLLC

When told that one of the male respondents in the Cornell 7 sexual assault case stated that he was also too intoxicated to consent to sex and that Jane Doe, the female complainant in the case, therefore sexually assaulted him when she performed oral sex on him, Doe’s attorney responded by suggesting that idea was absurd, saying at first that “he’ll be the first person in the planet to make that claim, that some woman forced [her]self on [him]” before walking that back to say that although “it does happen,” “under the circumstances here” that is “just ludicrous.”

Was he too quick to judge? He would be under a defensible Title IX process. As I discussed recently on Dan Schorr’s Title IX and Civil Rights Podcast (Apple and Spotify), dismissing such a claim out of hand is risky. Such an allegation warrants the exact same process under Title IX as any other sexual assault allegation.

Intoxication Is Not a Defense

Under both New York law and Title IX processes, being intoxicated or impaired by drugs or alcohol is not a defense to a violation based on another person’s incapacitation. What does that mean? It means a person generally cannot defend against a sexual-misconduct allegation by saying that they were too drunk or high to recognize that the other person was incapacitated, so long as a reasonable person who was not intoxicated would know that the person was incapacitated.

The definitions appear to be somewhat different under New York law and Title IX policies, at least where the person alleged to have been subjected to sexual misconduct became intoxicated willingly. As one source explains, “many say [New York law] requires an extraordinarily high bar for victims of rape who willingly became intoxicated” because they must show they were “physically helpless” to show they were incapable of consenting.

That standard is not quite the same under most college and university Title IX policies’ definitions of “incapacitation.” Cornell’s Title IX procedures, for example, say that a person is incapacitated “when they are unconscious, asleep, involuntarily restrained, physically helpless, or otherwise unable to provide consent.” It says that “Someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent depending on the level of intoxication,” and that “Affirmative consent cannot be gained by taking advantage of the incapacitation of another.” The procedures say that in evaluating responsibility in cases of alleged incapacitation, “the fact finder asks two questions: (1) did the respondent know that the complainant was incapacitated? If not, (2) should a sober, reasonable person in the respondent’s situation have known that the complainant was incapacitated?” If the answer to either of those questions is “yes,” affirmative consent was absent.

Cornell’s and other universities' policies are therefore often broad enough to find incapacitation even where a student willingly consumed the intoxicants, even if they are not “physically helpless” as required under New York law.

As one university explains, incapacitation can be found based on signs like a person not being able to give coherent answers to questions or to use basic motor skills, recall basic facts, or walk without assistance. Other factors that might come into play include:

• significant confusion about what is happening around them
• disorientation about where they are, how they got there, who they are with
• Incoherent or substantially impaired communications, including slurred or incomprehensible speech
• Significant loss of coordination or motor control, including stumbling, swaying, or falling
• Difficulty focusing or keeping their eyes open
• Vomiting or incontinence, and
• Drifting in and out of consciousness.

Men Can Be Incapacitated, Too

Importantly, that objective, “reasonable person” analysis applies to everyone equally. Both women and men can bring valid incapacitation claims, as long as the definitional standard is met.

What would happen if two students in a sexual encounter both claimed they were incapacitated? Would they cancel each other out? No. The Cornell procedures explain that if the fact finder determines based on a preponderance of the evidence that both parties were incapacitated, the person who initiated the sexual activity alleged to be nonconsensual due to incapacity is at fault.

Could there be a circumstance where both students were at fault under that standard? Perhaps. If the evidence showed that a male student initiated vaginal sex with a female student while both were incapacitated, he could be at fault. But if the female student then engaged in oral sex on the male student, she might also be at fault.

The differences between the New York law and university policies may explain why law enforcement initially decided not to pursue criminal charges, yet Cornell reportedly suspended and expelled at least some of the male students. It’s not uncommon for the same night to be analyzed under two different sets of rules and produce two different results, without either system being wrong. That’s not to say no one was wrong in the Jane Doe case, but it is not only possible but is quite common that law enforcement does not pursue cases that schools, colleges, and universities nonetheless must pursue under Title IX, particularly when drugs and alcohol are involved.

Why It Matters

Whatever standard of incapacitation applies, institutions must apply it evenly. Title IX is a law focused on similar treatment of the sexes, not a law that only protects women against men. And although the estimated percentage of women who have been sexually victimized (32%) is higher than that for men (27%), that difference is certainly not so large that sexual violence against men should be treated as unusual or trivialized. Men and boys are also much less likely to report sexual assault, with one source suggesting that 90 to 95% of male sexual violations are not reported. Dismissing a man’s claim of sexual assault due to intoxication as inherently absurd risks reinforcing the stereotypes and stigma that contribute to male victims not coming forward.

Of course, taking an allegation seriously does not mean believing it. In the Title IX world, it means offering supports to the complainant, making sure they know their rights to file a formal complaint and, if they do, investigating and adjudicating it as required by the 2020 Title IX regulations. That is what a defensible Title IX process always requires, no matter what the gender of the parties is.