John and Jane -- not their real names, of course -- attend the same college (Occidental). John and Jane are both extremely drunk one night. As occasionally happens in college. John and Jane have sex.
Neither John nor Jane should be having sex; neither one is sufficiently sober to effectively consent. As the hearing administrator found: "An external adjudicator found Jane was incapacitated within the
meaning of the policy because she was intoxicated and unable to
make 'an informed and rational decision to engage in sexual
activity.' The adjudicator found John was also intoxicated; in
fact, so intoxicated he did not know Jane was incapacitated."
But, as Justice Segal notes: "Under Occidental’s policy, however, John’s intoxication did not
diminish his responsibility to obtain Jane’s consent, and John
violated the policy because he should have known Jane was
incapacitated. The adjudicator concluded a sober person in
John’s position should have known Jane was too drunk to
consent."
Is this one of those "Boy Forces Girl After She Says No" cases? No. Not this one. It's instead one of those straightforward intoxication cases. Jane "wants" to have sex. (But, again, is not in a position in which she can intelligently consent.) Which is why you have facts like these:
"Jane said she remembered that, after returning to John’s
room, she asked him if he had a condom. She remembered 'performing oral sex on him,' but did not remember 'having
sexual intercourse.'" And text messages like these:
At 12:20 a.m. Jane sent a text message to her best friend
from home saying, “I’m wasted.”
Between 12:31 and 12:45 a.m.,
Jane and John exchanged text messages, including these:
John: “The second that you’re away from [Angela and
Jamison] come back.”
Jane: “Okay.”
John: “Get the fuck back here. Get the fuck back here.”
Jane: “They’re still with me . . . .”
John: “Make them leave. Tell them yo[u] want to
sleep. . . . Just get back here.”
Jane: “Okay do you have a condom.”
John: “Yes.”
Jane: “Good give me two minutes.”
John: “Come here.”
Jane: “Coming.”
John: “Good girl. Knock when you’re here.”
Jane: “[Jamison is] out ride [sic] my door.”
John: “What.
Jane: “[Jamison] is outside my door.”
John: “Wtf.”
Jane: “Right.”
John: “Get him to leave.”
Jane: “Working on [i]t.”
. . . .
John: “Leave. Say you’re going to the bathroom.”
Jane: “Okay.”
And then, immediately before leaving her room to go back to John to have sex with him, "Jane texted her friend from home
again at 12:40 a.m. and said, 'The worlds moving.
I’mgoingtohave sex now.'”
So what happens?
John gets expelled. The Court of Appeal affirms.
