We’ve said it many times: to college students, drinking and sex go together like peanut butter and jelly. Despite annual training on alcohol consumption and consent for freshmen, we still encounter cases questioning whether someone was too incapacitated to give meaningful consent. Likewise, even though we have written on this topic many times before, there still seems to be a lot of confusion about when drunk is too drunk to convey consent. So, here is what we hope to be a simple primer for parents and students to consider when assessing whether a student was involved in a Title IX matter regarding mutual intoxication.

Common Misunderstandings: Drunk, Blacked Out, Grey Out, and Brown Out

Being “drunk,” “blacked out,” “grey out.” and “brown out” are not technical terms. While students frequently use these terms both on and off campus, the words have no relevance in the law or in college policies around the country.

Legal Terminology: Intoxicated vs. Incapacitated

The proper terminology is whether a student is intoxicated or incapacitated. Let’s make this clear: you can convey consent to sexual activity if you are intoxicated. You cannot convey consent if you are incapacitated. Incapacitation occurs when you do not know the who, what, where or why of the moment. In other words, the person who drank alcohol cannot understand the fact, nature or extent of the sexual activity. A person can assess another person’s capacity to consent by observing the following:

• Can the student walk or are they stumbling around?
• Is the student talking and maintaining a conversation or slurring his or her words?
• Is the person vomiting, disoriented or unconscious?
• Does the person need to go to the hospital for medical assistance or just go home and sleep the night off?

Signs of Incapacitation: How to Assess Consent

Assessing incapacitation should not be difficult. However, things can get dicey when the sexual partner has also consumed a lot of alcohol (or weed or other substances). Under most every college policy, a student’s own intoxication is not a defense or excuse for not making a proper evaluation of the other’s capacity to provide consent. No sexual activity can ever occur when a person shows signs of incapacitation.

The Complications of Mutual Intoxication in Sexual Consent

What does this mean in the real world when both students are drunk? Typically, we find the first to file charges leaves the other student playing defense. It’s a race to the Title IX office. “Not fair,” is a common refrain that we hear all of the time. While it’s a common refrain, “not fair” reflects the unfortunate reality that life can indeed be unfair, especially when both students were equally intoxicated and ended up in bed together. It happens all of the time.

The Importance of Clear and Affirmative Consent

Most of the time, both students are just intoxicated, and it’s sobering (pun intended) for students to realize that both must accept responsibility for getting drunk and fooling around. With one major exception, if a student conveys that they are really drunk and not sure about sex, there is no consent. Consent must be clear and unequivocal. No student should be pressured to engage in sexual activity. On campuses where consent must be affirmative, both students should convey a resounding “yes,” even if it’s a drunk, sloppy (but not slurry) yes. Again, no is always no. A student can stop at any point, so consent must be conveyed at each and every interval of sexual activity.

Cross-Complaints and Equal Risks in Title IX Matters

If both parties are incapacitated, there can be cross-complaints filed so both students have equal risk in the process. However, in the real world, two incapacitated students do not usually engage in sexual activity (a topic for another day).

Differentiating States of Intoxication: When One Student is Incapacitated

Sometimes, it is clear that one student was incapacitated, and the other was intoxicated. Under that scenario, the intoxicated student should have had the bandwidth to call it quits and take a rain check on the night. If not, the student could be found responsible for violating Title IX.

Legal Help for Title IX and Student Conduct Proceedings

We truly hope this helps clear up any confusion on this topic or at least presents a topic for discussion at home around the dinner table.