Home > Sexual Assault > Sexual Consent and Alcohol & Drugs

On college campuses, where alcohol and drugs often play a large role in social interactions, questions and concerns about sexual consent are inevitable. There are at least three perspectives from which to examine the issues.

First, according to Massachusetts state law, people under the influence of alcohol or drugs are absolutely incapable of giving sexual consent. Even if a person who is "under the influence" says s/he willingly gives consent, the other person can theoretically be convicted of rape if s/he engages in sexual activity with the disinhibited person. However, the reality is that it is exceedingly difficult to prove questions of intoxication and consent after the fact. So criminal prosecution in these situations remains sparse.

Secondly, Brandeis has its own rules about sexual conduct, independent of the criminal statutes. Private universities are not bound by the same rules of evidence and procedure that state courts must follow, and they are free to set their own standards for their students. All Brandeis students have agreed to adhere to the standards contained in the Rights and Responsibilities handbook. Section 2.2 of Rights and Responsibilities addresses the question of sexual consent in the following terms:

"Sexual contact that occurs without the explicit consent of each student involved may be considered sexual misconduct. Consent must be clearly communicated, mutual, non-coercive, and given free of force or the threat of force. A student who is physically or mentally incapacitated by drugs, alcohol, or other circumstances is not capable of giving consent. A student must be fully conscious and awake in order to give consent." (italics added)

A third facet of the question is the thorny issue of morality. Morality is a term that comes loaded with a lot of unfortunate baggage, implying judgment and the imposition of values. Fundamentally, though, morality is the study of choices and consequences. Outside of the scope of rules, statutes, and regulations, how do we decide what to do and what not to do? Having sex with someone who has been drinking or doing drugs is a choice that can have profound consequences.

If, in the heat of the moment, and under the influence of alcohol, two people have sex, and one of them wakes up the next morning feeling violated, betrayed, or raped, the other person in that situation may never face legal consequences. They might never have to explain their actions to a jury, but they will still have to grapple with the very real effects that they've had on another person.

A final note on the subject: people often ask us "But what if we're both drinking?" Some that ask are genuinely curious about the issue, while others just seem to be looking for a loophole, a way to absolve themselves of technical guilt. Their thought process appears to go something like this: if I get drunk, it doesn't matter if the other person is drunk or not, because there's no way I can get in trouble. There is no simple answer in this situation -- University judicial charges could conceivably be filed. Or perhaps not. But regardless of the legal ramifications, the human impact will be real, and sometimes sadly so.