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How Intoxication Affects Consent In Title IX Hearings

Posted by Kara Hoopis Manosh | Sep 16, 2021

If you are accused of violating Title IX and anticipate being part of an investigation or hearing and are wondering how intoxication affects consent in Title IX hearings, an experienced Title IX defense attorney can help. Contact Manosh Payette, LLC today at (401) 854-7794 for a free case strategy session to ensure that your rights are protected throughout the investigation process.

Title IX and Consent

Title IX was made into law as part of the Education Amendments of 1972. It was designed to protect against gender discrimination in educational settings that receive federal funding. While Title IX originally focused on discrimination in athletics and admissions, this law has been deemed to apply to cases of sexual harassment, sexual assault, and sexual violence. Under Title IX, any sexual encounter that occurs without consent is sexual assault. How intoxication affects consent in Title IX hearings can be difficult to determine and an experienced Title IX defense attorneys like Kara Manosh and Elizabeth Payette can help.

The Importance of the Definition of “Consent”

The difficult part about consent related to Title IX is that each educational institution may define it differently. At Brown University, consent is defined as “an agreement to engage in sex with another person”. Providence College, another institution in Rhode Island, defines consent as “mutually understandable” words or actions that indicate a willingness to engage in specific sexual activity.

The difference in how consent is defined at each institution means that the facts that occurred and the manner in which actions and words were perceived will matter greatly. Consent generally is not given when a person is unconscious, asleep, or incapacitated (for example, if they have had too much alcohol to drink), meaning that they lack the ability to understand what is happening or provide true consent.

In general, consent is voluntary, mutual, and can be withdrawn at any time. Consent cannot be given if someone is physically incapacitated, intoxicated, or impaired. Consent is not the absence of a no but is rather a clear “yes.” Consent also needs to be specific. If someone consents to a specific set of actions, you cannot assume that they have consented to additional actions or other actions.

Incapacitation and Title IX

Title IX protects students from sexual harassment or sexual violence without their consent or while they are incapacitated. Sometimes, an accuser will say that because they were drinking or because they had too much to drink they could not have possibly provided consent.  Proving incapacitation can be difficult and the line between intoxicated and incapacitated (intoxicated to the level that a person cannot consent) can vary from person to person. Sometimes, schools' codes of conduct for students cover what intoxication and incapacitation are and when they violate the disciplinary policies, but their definitions are often unclear, circular, and confusing.

Consent Can Occur Even With Alcohol Use

Consent can still be given even if someone has been drinking alcohol, provided they were able to appreciate the situation and willingly agree to what was occurring. Proving this can be difficult. If someone is incapacitated and therefore unable to provide consent, they are more likely to experience the following:

● An inability to talk whether through slurred words or speech
● Inability to walk
● Vomiting and not being able to keep food or drink down
● Unconsciousness

Someone who knows that another is incapacitated should not engage in sexual activity with that person. If you are unsure at all of whether someone can provide consent or not, it is best not to engage in any sexual activity. Even while under the influence of alcohol, it is the responsibility of the person initiating sex to obtain consent.  Often times, the best way to show a reasonable belief that you had consent is by investigating and locating other evidence showing the complainant's state of mind at the time they now claim to have been incapacitated. For example, text messages, videos posted to social media, or other witness testimony about their interactions during the relevant time period. (This is yet another example of why a Criminal Defense attorney is uniquely qualified to defend a title IX allegation: Investigations are what we do in every serious case.)

Defending Against a Title IX Claim

If you are accused of violating Title IX and it involves intoxication, there are some things that you can do to strengthen your case. Any person who was with you who may be a witness to what happened and who can explain how you and the accuser interacted may be helpful. It depends on what they actually witnessed to know if and  how their facts may help your case. If your accuser was drinking but not to the point of not knowing what was happening, that may help your case as well. Any witnesses who can speak about how you both looked, may be helpful.

Alcohol Use Is Not an Automatic Excuse

If you are accused of violating Title IX, you cannot use intoxication for either yourself or the accuser as an excuse for what occurred. If you state that the accuser initiated the sexual interaction, but it is later found out that the accuser was incapacitated, this will not help your case. Alternatively, if you claim that you were incapacitated and therefore lacked the ability to understand what was happening, you may also put yourself in a position of potentially violating other policies (for example, being incapacitated in a dry building). Often, violating disciplinary codes at a post-secondary education while intoxicated is something that may be punished even more harshly, and incapacitation will not be seen as a valid excuse. This is a potential minefield, and a comprehensive strategy should be agreed-upon before moving forward.

Updated Title IX Regulations

Title IX received updated regulations in August 2020. Among the changes in these Final Regulations are the following:

● Narrowed definition of sexual assault
● Schools may now only investigate claims that occurred on campus or while at official programs or events (excluding most off-campus activities)
● Increased due process procedures for those who are accused
● Schools may now choose what standard of evidence they want to use
● Both parties (accuser and accused) must be given the option to appeal

A summary of these changes and provisions may be found here. Most significantly for those who have been accused, schools will be required to explain to the accuser what the standard of evidence is, and they must also provide a written decision and rationale. This is beneficial to the accused because schools often fail to provide due process.

Contact an Experienced Title IX Defense Attorney Today

Attorneys Manosh and Payette can provide experienced guidance if you have been accused of sexual assault or sexual violence under Title IX or if you are wondering how intoxication affects consent in Title IX hearings. You deserve a thorough investigation and a fair hearing. We will defend you zealously to clear your name. Contact our offices today at (401) 854-7794 for a free case strategy session.  

About the Author

Kara Hoopis Manosh

Attorney Manosh has dedicated her entire career to defending the rights of the criminally accused. She has handled thousands of cases, appearing in every courthouse in the State of Rhode Island.

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