What is consent?

[Adelaide]

So I am having to do Title IX training for next year and something interesting that I never knew (because I never bothered doing this seminar before) is that consent is considered to be "FRIES": Freely given, reversible, informed, enthusiastic, and specific.

I actually thought that seemed like a good way to gauge it; informed and freely given implies that someone cannot be blackout drunk, for example.

What are your thoughts?

[DGUtley]

Agree. What happens if both were equally drunk? I had that case once.

[Adelaide]

Agree. What happens if both were equally drunk? I had that case once.

That is complex. Are both individuals drunk enough to blackout? Or, to be handled? How is that measured? Did they get blood tests within x amount of time? Unfortunately, without an ability to quantify how inebriated both are and without the ability to prove how they both react to alcohol (I know people who drop after one beer, and I know people who can drink 750mls of rum and not seem drunk), there is not really a way to determine if both were consenting or both non-consenting or both not able to consent... or one could and one couldn't...


Think that it is going to be very hard to prove a lack of consent in that case unless there was also physical violence involved?

[Perianne]

Agree. What happens if both were equally drunk? I had that case once.

Who are the "both"?

[DGUtley]

That is complex. Are both individuals drunk enough to blackout? Or, to be handled? How is that measured? Did they get blood tests within x amount of time? Unfortunately, without an ability to quantify how inebriated both are and without the ability to prove how they both react to alcohol (I know people who drop after one beer, and I know people who can drink 750mls of rum and not seem drunk), there is not really a way to determine if both were consenting or both non-consenting or both not able to consent... or one could and one couldn't... Think that it is going to be very hard to prove a lack of consent in that case unless there was also physical violence involved?

Who are the "both"?

I was involved with a case once. The boy was a superstar baseball player from a Catholic School in Cleveland. Had never been in trouble before. They had met in college, weren't dating but they were playing googly eyes. It was her 21st birthday and they were going out with a bunch of people. She'd told a bunch of her friends she was going to "do" him. Anyways, they went out and they both got goon-stinking-drunk. They went back to his dorm, climbed into his bed. She promptly passed out. He went to sleep. He woke up a few hours later and she was covered in vomit. he took her into the shower, fully clothed and put her under the shower to clean her off. She suddenly was raring and ready to go. She finished her shower, they went into his room and had sex. They went to sleep and she got up and went to her dorm.

The next afternoon, she was describing what happened to her friends and one of them said 'he raped you b/c you were drunk'. He was charged and kicked out of school, and not permitted to reenroll in a state school for 5 years. He was refused counsel at the student conduct court. His defense all along: We were both drunk, she initiated it, she raped me.

My firm came in, got the criminal charges dismissed and sued the school for violation of his rights. We found a guy and his girlfriend making out in the study lounge across from the showers that saw them go in the shower and then come out of the shower. The girl testified that he was clearly more drunk and that the complainant was saying amorous things. We resolved the case with a cash payment to cover his scholarship and the re-enrollment ban lifted. To this day, and I sat in on and/or took 7 or 8 depositions, he was the victim.

[Adelaide]

I was involved with a case once. The boy was a superstar baseball player from a Catholic School in Cleveland. Had never been in trouble before. They had met in college, weren't dating but they were playing googly eyes. It was her 21st birthday and they were going out with a bunch of people. She'd told a bunch of her friends she was going to "do" him. Anyways, they went out and they both got goon-stinking-drunk. They went back to his dorm, climbed into his bed. She promptly passed out. He went to sleep. He woke up a few hours later and she was covered in vomit. he took her into the shower, fully clothed and put her under the shower to clean her off. She suddenly was raring and ready to go. She finished her shower, they went into his room and had sex. They went to sleep and she got up and went to her dorm.

The next afternoon, she was describing what happened to her friends and one of them said 'he raped you b/c you were drunk'. He was charged and kicked out of school, and not permitted to reenroll in a state school for 5 years. He was refused counsel at the student conduct court. His defense all along: We were both drunk, she initiated it, she raped me.

My firm came in, got the criminal charges dismissed and sued the school for violation of his rights. We found a guy and his girlfriend making out in the study lounge across from the showers that saw them go in the shower and then come out of the shower. The girl testified that he was clearly more drunk and that the complainant was saying amorous things. We resolved the case with a cash payment to cover his scholarship and the re-enrollment ban lifted. To this day, and I sat in on and/or took 7 or 8 depositions, he was the victim.

Well, that seems fairly clear so long as there is evidence (which you said there is) along the way to prove various aspects.

One problem is that people simply aren't educated. Admittedly, I only just completed my title IX seminar but in my undergrad, I wrote a ton of papers on sexual assault including for my senior thesis for one of my degrees. Aside from basic information, most people have no idea. The friend of the female, in your case, caused a lot of trouble by saying what she did and it's something a lot of people might say without considering the entire context of what happened.

[DGUtley]

Well, that seems fairly clear so long as there is evidence (which you said there is) along the way to prove various aspects. One problem is that people simply aren't educated. Admittedly, I only just completed my title IX seminar but in my undergrad, I wrote a ton of papers on sexual assault including for my senior thesis for one of my degrees. Aside from basic information, most people have no idea. The friend of the female, in your case, caused a lot of trouble by saying what she did and it's something a lot of people might say without considering the entire context of what happened.

Can they both be equally legally responsible? They were both unable to consent, it seemed. Or rather, he was unable to consent but the shower and the sleep put her in a situation where she could consent. Should she have been charged, kicked out of school and legally prevented from applying to a state school for 5-years?

[FindersKeepers]

I was involved with a case once. The boy was a superstar baseball player from a Catholic School in Cleveland. Had never been in trouble before. They had met in college, weren't dating but they were playing googly eyes. It was her 21st birthday and they were going out with a bunch of people. She'd told a bunch of her friends she was going to "do" him. Anyways, they went out and they both got goon-stinking-drunk. They went back to his dorm, climbed into his bed. She promptly passed out. He went to sleep. He woke up a few hours later and she was covered in vomit. he took her into the shower, fully clothed and put her under the shower to clean her off. She suddenly was raring and ready to go. She finished her shower, they went into his room and had sex. They went to sleep and she got up and went to her dorm.

The next afternoon, she was describing what happened to her friends and one of them said 'he raped you b/c you were drunk'. He was charged and kicked out of school, and not permitted to reenroll in a state school for 5 years. He was refused counsel at the student conduct court. His defense all along: We were both drunk, she initiated it, she raped me.

My firm came in, got the criminal charges dismissed and sued the school for violation of his rights. We found a guy and his girlfriend making out in the study lounge across from the showers that saw them go in the shower and then come out of the shower. The girl testified that he was clearly more drunk and that the complainant was saying amorous things. We resolved the case with a cash payment to cover his scholarship and the re-enrollment ban lifted. To this day, and I sat in on and/or took 7 or 8 depositions, he was the victim.

I, too, was involved in a case, not as an attorney obviously, but as a witness who was subpoenaed. The 14 year old daughter of my neighbor, who also happened to be an attorney and a senator at the time was giggling and snickering with my daughter in the dining room while I was in the kitchen cooking. Then, they came into the kitchen and my daughter prompted her friend to tell me her story. The friend was very excited at the time while she told me she sent a note to her female college basketball mentor telling her that she (the 14-year old) was almost raped by her 14-year old boyfriend. Her mentor gave the note to her father who blew up. Understandable. Then, the young woman told me she didn't know what to do because she'd lied to get her mentor's attention. I told her she had to tell her father the truth and she promised to do so.

I didn't think a thing about until a few months later when two men showed up at my door, asking me what I knew. They were private detectives hired by the attorney for the 14-year-old boy who had been accused. I explained what had taken place in the kitchen and, sure enough, a couple of months later, both my daughter had to give depositions. I called the prosecuting attorney, maybe that was the wrong thing to do, and I explained what had happened because he was prosecuting the case VERY QUIETLY. He was an acquaintance. He was like "Oh great..." At the deposition, I told my story to the boy's attorney, and then the prosecuting attorney declined to ask me any questions. He did the same thing when I testified at the trial, and I always wondered if it was because I'd spoken to him privately about the case.

At any rate, before the trial, the girl's father came over and literally bawled, telling me I shouldn't testify because there was a spelling error on the subpoena. He said I didn't have to go because of that. I went. So did my daughter. That pretty much blew our neighborly relationship, but I'd asked the girl again why she hadn't told her father the truth, and she said she had, but that he wasn't going to back down. She wrote a note to the judge the day of the trial, and asked my daughter to hand it to him since the girl, herself, was not going to be in the courtroom.

The boy won, and the judge read the good senator the riot act, whereupon he marched out of the courtroom. The boy's parents had to sell their house to pay for his defense, and they subsequently moved to a different town. Because minors were involved, the story never made the papers. The prosecuting attorney who is now retired, never mentions it when he sees me, but he always gives me a big hug, so it obviously didn't affect our friendship. I pretty much quit talking to the neighbors because I didn't trust what I might say. We smile at social functions, but nothing more.

I learned a life lesson from that fiasco -- girls don't always tell the truth and not every accusation should be believed.

There really should be some sort of fund that repays people who are falsely accused.

[patrickt]

Agree. What happens if both were equally drunk? I had that case once.

The guy gets convicted. Being drunk means woman can't give consent but it doesn't relieve a man of responsibility.


The whole issue has gotten to the point that a man having sex with a woman is a totally irrational act.

[DGUtley]

The guy gets convicted. Being drunk means woman can't give consent but it doesn't relieve a man of responsibility. The whole issue has gotten to the point that a man having sex with a woman is a totally irrational act.

I don't know if that's true, though it likely is. That was the case we had with the baseball player. It was years ago and PCness would probably prevent us from being successful today. It's scary if you are a male.