“Consider the illogical message many schools are sending their students about drinking and having sex: that intercourse with someone “under the influence” of alcohol is always rape…”

Consider the illogical message many schools are sending their students about drinking and having sex: that intercourse with someone “under the influence” of alcohol is always rape. Typical is this warning on a joint Hampshire, Mount Holyoke and Smith website: “Agreement given while under the influence of alcohol or other drugs is not considered consent”; “if you have not consented to sexual intercourse, it is rape.”

Now consider that one large survey showed that around 40 percent of undergraduates, both men and women, had sex while under the influence of alcohol. Are all these students rape victims? And what if both parties were under the influence? Asked this question, a Duke University dean answered, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent.” This answer shows more ideology than logic.

In fact, sex with someone under the influence is not automatically rape. That misleading statement misrepresents both the law and universities’ official policies. The general rule is that sex with someone incapacitated by alcohol or other drugs is rape. There is — or at least used to be — a big difference. Incapacitation typically means you no longer know what’s happening around you or can’t manage basic physical activity like walking or standing.

Jed Rubenfeld, “Mishandling Rape”, The New York Times (16 November 2014), SR4.