What happens to sexual consent when alcohol is involved? More specifically, if she says yes, how drunk does she have to be before her vote doesn’t count?
Hundreds crowded into Somsen Auditorium on the Winona State University campus to collectively ponder that issue Monday. With the help of attorney Brett Sokolow, the audience was transformed into a jury that considered the details from a court case that examined exactly that situation.
Sokolow represents universities against claims arising from sexual assaults that happen on or around college campuses. The case he shared Monday happened eight years ago, he said, but it is compelling both for the complexity of its details and its likelihood of happening on any college campus any day of the week anywhere in the country.
Sokolow told the story of Amy and Todd, two underclassmen who met at a house party one Thursday night. Amy drank five beers in an hour, Todd drank three and cut himself off. But Todd continued to offer
Amy Jell-O shots made with grain alcohol, which is more than twice the strength of other hard liquor.Todd, who worked part-time as a bartender, made the Jell-O shots and knew what was in them, Sokolow said, but testified he figured Amy would turn them down if she didn’t want more. The five Jell-O shots Amy consumed were the equivalent of 15 drinks, Sokolow said, and by 2 a.m. she was a mess. Amy asked Todd to walk her home, which more resembled dragging, Sokolow said, because Amy was so drunk. But she invited him in when they reached her apartment, and according to court testimony was the aggressor in the physical contact that ensued.
Sokolow said Todd did testify that Amy told him to stop when they were on the threshold of intercourse, which he said he reluctantly did, just before she passed out for a period of around 20 minutes. But when she woke up, Todd told the jury, she said she felt better, and she resumed the intimacy that led to intercourse between the pair. In the morning while Amy slept, Todd left a note thanking her and giving her his number. The next day Amy had no idea who Todd was or why she would have a note from him. Amy had been blacked out the entire time, she said, and had no recollection of the event or her participation in it. And it had cost her her virginity, emergency room doctors confirmed.
So the question, Sokolow asked the hushed audience in Somsen Hall, is was it drunk sex or date rape and why?
Students had the opportunity to ask Sokolow questions before he took a straw poll of the audience. They wanted to know things like Amy’s history with alcohol consumption and Todd’s history with women. Audience members also asked questions like where the fine line is between drunk and incapacitated, which Sokolow said is something each jury must decide.
The matter didn’t involve Amy’s consent, Sokolow said, it had to do with whether she was even able to give consent. Todd testified that Amy was a good drunk, and that if she was experiencing a blackout it was occurring solely in her head. “Why should I go to jail because she’s a good drunk?” Sokolow said Todd asked the jury. Counting Amy’s drinks and the fact that she had thrown up, Todd testified that by the time they had sex Amy couldn’t have been that drunk anymore.
Amy testified that she didn’t remember a single thing from the second Jell-O shot until about 11 a.m. the next day. To be incapacitated, Sokolow said, means that you are so drunk or drugged it is like you are asleep. But people experiencing blackouts can often perform typical functions like find their apartment or even drive a car.
The law says that it is a crime to have sex with someone who you know to be incapacitated or reasonably should have known to be incapacitated, Sokolow explained. “If I am incapacitated there is no way I can give you the consent I appear to be giving,” he said. So the question for the jury in the first case and in Somsen Hall became should Todd have known that Amy was beyond the point of giving her consent. By a show of hands, around 60% of the auditorium found Todd guilty of a felony. The remainder found him not guilty. “So you can see the problem when it comes to [the] next Thursday and we go out with two sets of perceptions,” Sokolow told the divided audience.
After 1,200 presentations of the same scenario, no group had unanimously agreed, Sokolow said, and most found a fairly even split similar to that at Winona State.
Those who found Todd guilty cited his experience bartending, his sobriety, and his knowledge of how much Amy had to drink before engaging in sex with him. Those who found him innocent cited Amy’s responsibility with her own alcohol consumption and her apparent lucidity during what she said was a blackout.
The audience couldn’t agree whether it was meaningful that Todd left a note, with some saying he did it to appear innocent of date rape, and some saying he did it because he believed Amy consented. Sokolow said when you take the matter outside of the realm of sex, it is easier for many people to see how incapacitation interferes with consent.
In a courtroom, the law would nullify any contract signed while one of the parties was incapacitated. In reality, he said, a jury of seven men and five women eight years ago unanimously found Todd guilty and he served 18 months in a medium security prison. He will register for the rest of his life as a felony sex offender, Sokolow said, and went from near genius stature at a prestigious university to a community college.
The house that sponsored the party was found civilly liable for over seven figures in damages, he said. And Amy dropped out of school too. “I didn’t come here to tell you what to think,” Sokolow said, “but to create a forum.” His best advice, Sokolow said, is that if you are not absolutely certain a person is okay, to walk her home, say good night and talk to her the next day. And for girls and women, Sokolow said, his advice is to watch each other’s back, especially when alcohol is involved.
Had Amy’s friends stuck with her that night the outcome might have been much different, he suggested. “We can debate the outcome all night,” Sokolow said, “but the bottom line is if you feel like hooking up with someone and think that they are okay, you should know that you don’t get to decide that. A jury of 12 people will put their own beliefs on that.”
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