Definitely, not maybe

UNC’s new sexual assault policy makes a point to clearly define consent to sexual activity.

But it can’t provide a magic formula for students to determine the difference between mere intoxication versus incapacitation.

Under the new policy, students who are incapacitated cannot give consent to sexual activity. Incapacitation is defined as a state beyond intoxication, impairment in judgment or “drunkenness.”

The policy requires a clear and affirmative demonstration of consent to sexual activity, meaning that a party must give a clear “yes” through words or actions.

The leaders of Project Dinah, a student group working to end sexual assault and violence at UNC, said they are concerned the policy’s choice of words wrongly suggests people can give consent when they are drunk but haven’t blacked out.

“I don’t think you need to be asleep or unconscious to be intoxicated past the point of being able to make an informed decision,” said co-chairwoman Maddy Frumkin. “While we’re wary of it, we also recognize that the definition of consent is very thorough, and we hope that will also help with some of this issue.”

Frumkin said students understand the difference between a drunken regret and assault.

“Being sexually assaulted is not something someone does willingly,” she said. “Assuming that students don’t understand that is trivializing a lot of students’ experiences with sexual assault.”

A research report on campus sexual assaults submitted to the U.S. Department of Justice in 2007 concluded most campus assaults on women occurred when alcohol was involved.

“Researchers have consistently reported that a sizable percentage of women are sexually assaulted during their college years, with, on average, at least 50 percent of their sexual assaults involving the use of alcohol or other drugs by the perpetrator, victim, or both,” the report said.

There isn’t always a scientific way to prove incapacitation, because alcohol and drugs affect each person differently, said Christi Hurt, chairwoman of UNC’s Sexual Assault Task Force.

The policy tries to capture the range of behavior where someone isn’t unconscious but is still unable to give informed consent, she said in an interview in August.

“Science isn’t there to tell us exactly where that line is, so our policy, you’ll see, captures a range of indicators that could show somebody’s not able to give that informed consent and really put the responsibility on the investigator to make that assessment,” Hurt said.

David Riedell, a UNC alumnus who has followed the ongoing dialogue about campus sexual assault, said he thinks it would be hard for investigators to determine whether someone is incapacitated beyond intoxication without toxicology tests.

“I think this is generally the problem with college, especially, sexual assault and rape cases — a lot of the time they really do devolve into a ‘he said, she said’ type scenario where it’s extremely difficult to suss out the truth of what actually happened,” Riedell said.

Because alcohol affects people differently, investigators need to look at allegations involving alcohol on a case-by-case basis, said Vice Chancellor for Student Affairs Winston Crisp.

“I don’t think there is a way to exclude the possibility of inconsistency and blurred lines without having a bright line rule that says, ‘Under no circumstances can consent be given if there is alcohol involved,’” he said. “I don’t think that the task force and, frankly, the community would be supportive of that bright line.”

Sexual assault survivor Sarah Tedesco, a junior at Emerson College, disagreed with UNC’s wording about the distinction between intoxication and incapacitation.

During Tedecso’s freshman year, she accused a student at Emerson and a student at the Massachusetts Institute of Technology of intentionally getting her drunk and raping her.

“If you’re intoxicated you can’t give consent, and I think a lot of schools are scared how to go about this because they know students are going to drink and go to parties,” she said. “That’s not something they can change, really, because it’s going to happen.”

Orange County Emergency Services regularly deals with the issue of consent, but in a different context. When an ambulance is called to take care of an intoxicated student, the responders must assess whether the person can consent to treatment.

The department was consulted by UNC’s Sexual Assault Task Force when it defined consent, said Kim Woodward, operations manager for Emergency Services. She said teaching safe habits — such as staying with a friend — is imperative to students’ safety.

“It’s really important to teach students what toxic drinking looks like and what inebriation looks like,” Woodward said. “It’s a very difficult subject, and if we can train students to know what to look for, maybe they’d think twice.”

UNC unveiled a new sexual assault education online module this semester, which was required for all incoming students. It incorporated questions about alcohol and sexual assault, such as whether respondents thought sexual assault can happen when two people have been drinking.

Shamecca Bryant, executive director of the Orange County Rape Crisis Center, stressed the importance of dispelling sexual assault myths through education programs — but the harder thing to discuss is what active consent looks like, she said.

“One of the things that we talk to college students about is the importance of being present and knowing what the individual wants,” Bryant said. “This idea of going out and getting someone highly intoxicated so you can take them home is not behavior that is appropriate in our society.”

Tedesco said she was raped at a MIT fraternity party after pregaming at an Emerson student’s apartment. It was one of the first times she ever had a lot to drink, and she said she thinks one of her two perpetrators purposely gave her more drinks than other students because he realized alcohol would affect her more strongly.

“If there’s one person actively going about initiating the sexual activity, and then there’s another person who isn’t saying ‘yes’ or ‘no’ because they’re very intoxicated, then they’re being taken advantage of,” she said.

Survivor Jillian Murray, who sued UNC for its handling of her sexual assault case under the previous policy in August, said one of the problems with rape culture is the misconception that survivors tease their perpetrators and later regret their actions.

“It’s victim blaming,” she said. “It’s asking whether or not (survivors) wanted it at the time or if they did anything to encourage it, and I think that’s a really terrible culture to live in.”

It can be difficult to tell when someone who has been drinking can and can’t give consent, Project Dinah’s Frumkin said.

“Because it’s so subjective, I do believe it’s possible for others to not see that line or for you, yourself, to not see that line,” she said.

Alban Foulser, co-chairwoman of Project Dinah, said she hopes people choose not to have a sexual encounter if they doubt either person’s ability to give consent because of their alcohol consumption.

“I would hope that if someone is unsure that they are able to give consent or they are unsure if the other person is able to give consent, the safest thing to do is to not have a sexual encounter,” she said. “I know that’s a hard thing to ask everyone to do.”

Riedell said he thinks accountability is difficult when both parties are drinking.

“It’s a lot closer to rape if one of the parties is sober and the other party is not,” he said. “If both parties are drinking, it’s drunken sex and it happens, I suppose.”

Intoxication is never an excuse for committing sexual violence, according to UNC’s new policy, which recommends ceasing sexual conduct in these situations where it’s unclear whether someone is incapacitated.

“Being drunk or high does not take away that responsibility and is not an excuse for assaulting or harming someone,” said Kelli Raker, UNC’s sexual violence prevention coordinator, in an email.

Riedell said he thinks the safest thing to do is to not drink to the point of incapacitation and to keep one’s wits, regardless of how UNC’s policy defines incapacitation and consent.

“The words on the paper are always going to be much more clear than the haze of a party.”

Senior writers Amanda Albright and Bradley Saacks contributed reporting.

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