A former naval midshipman was recently found not guilty of sexually assaulting a female midshipman. A military judge issued the verdict, and also decided the Naval Academy should internally handle the additional charge of lying to investigators. The student has resigned from the Naval Academy in exchange for the Academy dropping that lesser charge.
This case has raised questions about the nature of sexual assault at institutions of higher education. The judge who delivered the verdict identified such questions as, “how drunk is too drunk” and “how does one know when someone else is too drunk.” His verdict hinged upon the conclusion that the prosecutors did not meet their burden of proof.
Some are calling this case a failure of the justice system to punish a sexual offender. And that may be true. But part of the reason sexual assault cases are difficult to prosecute is that sometimes there are not clear answers to the questions the judge in this case identified. In order to facilitate more positive legal outcomes for sexual assault victims in the future, and also to prevent future cases of sexual assault, we have to address the ambiguity of these questions and try to make their answers as clear as possible.
In previous editorials we have discussed the importance of prevention over punishment of sexual assault, and the need for an “ask first” consent policy in addressing the issue of rape on college campuses. Now, we examine the issue of how alcohol consumption and intoxication level fits into the issue of rape.
A woman is more likely to be assaulted on a college campus than any other location. Since alcohol is often involved in incidents of sexual assault, it is conceivable that the prevalence of drinking in college is a factor in the high rate of sexual assault on college campuses. Legally, if a person is intoxicated, the person cannot consent to sex. But to assert that any sexual encounter which occurs when either party has consumed any alcohol is rape would be too broad of a definition. Drinking can be a positive social activity when done responsibly. In laying ground rules of acceptable conduct, we must be careful not to throw the baby out with the bathwater.
There must be an explicit standard for what level of intoxication disqualifies a person from being able to consent. It is not reasonable to expect that before sex someone pulls out a breathalyzer. But it is reasonable to expect that both parties think before they act. Some arguments for our “ask first” consent policy model can apply here.
We argued that an “ask first” standard of consent is based on the principle that no one should be presumed willing. Our vested interests should not be prioritized over respect for others’ personal autonomy. The same reasoning gives us cause not to presume someone is in a condition to consent to sex.
We also argued that we must have open conversations about sexual intimacy in order to eliminate ambiguities surrounding consent. The same process should be used to establish appropriate boundaries when it comes to sexual encounters which involve alcohol.
The most important principle to abide by is this: when in doubt, assume it’s a no. We need to formalize this mentality as the standard, rather than accepting a mentality that assumes a green light without confirming. That is the lesson we should take away from this case, to turn an unfortunate situation into tangible change for the future.
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