How Intoxication Affects Consent in Title IX Hearings

It is not uncommon for two students to get drunk and engage in sexual intercourse but, come sunrise, one of the students claims he/she wasn’t in the right mindset to consent and accuses the other student of rape. Many campus-related sexual misconduct claims involve intoxication being the reason why an accuser was unable to consent to sexual activity or the accused to believe that he/she had consent for such activity.

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Student policies often only address incapacitation due to the influence of alcohol, drugs, or medication, rather than intoxication. Additionally, such policies may also state that the accused cannot use the accuser’s intoxication as a valid excuse that the accuser consented to sexual activity.

Consent is defined as giving another person voluntary permission to engage in a specific activity. Consensual sexual activity means that each party involved must actively agree to the conduct—without being coerced, forced, or under the influence of alcohol and/or drugs. Without a verbal agreement, any type of sexual activity could be construed as sexual misconduct.

When alcohol is involved in Title IX investigations, the level of intoxication—rather than the actions and words that led up to the incident in question—is the primary focus. Although the actions and words made before sexual activity are not irrelevant, being too impaired does not equate to legal consent.

If you have been accused of campus-related sexual misconduct involving intoxication, the following are a few tips to defend yourself:

  • Find supporting witnesses – If there are witnesses who can provide their account of how you and your accuser interacted around the time of the incident, they may prove beneficial to your case. For instance, if a witness testifies that you and your accuser appeared fine and not impaired by alcohol or drugs before the incident, such testimony can benefit your case. On the other hand, if a witness claims that your accuser slurred his/her words, had difficulty walking or staying awake, or even vomited at some point, such statements will be used against you.
  • Do not use your accuser’s willingness as an excuse – Many students who are accused of campus-related sexual misconduct defend themselves by saying the accuser initiated the sexual contact. However, if the hearing panel concludes that the accuser was incapacitated or severely intoxicated, such indicators of consent are disregarded.
  • Do not use your own intoxication as an excuse – You may also claim that you were incapacitated to know what you were doing was wrong. Yet, that argument could be construed as a violation of disciplinary codes.
  • Hire a lawyer – Navigating the legal process alone can not only be confusing but doing so could make you vulnerable to the maximum penalties. An experienced attorney can protect your rights and best interests throughout the investigation and hearing, as well as build an effective and personalized defense strategy to help you avoid serious academic and criminal repercussions.

If you have been accused of campus-related sexual assault in California, Texas, New York, or Arizona, contact Parisi, Coan & Saccocio, PLLC today to learn how we can help you.