Laws on sexual consent still evolving

Deposition: Cosby had 7 prescriptions for quaaludes
Deposition: Cosby had 7 prescriptions for quaaludes

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Deposition: Cosby had 7 prescriptions for quaaludes 03:12

Story highlights

  • Danny Cevallos: Bill Cosby case has sparked dialogue about date rape
  • U.S. may be moving toward "zero tolerance" sex while intoxicated, he says

Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN)The revelation in unsealed court documents that Bill Cosby admitted to procuring quaaludes with the intent of using them for sex with women has, unsurprisingly, spurred a national dialogue about date rape and intoxication. While this latest revelation draws even greater attention to the embattled comedian's case, it also highlights the broader challenge for states, university campuses and society as a whole: Drawing the line between consensual sex while under the influence, and the inability to consent due to intoxication.

In criminal law, because the definition of rape is left to individual state legislatures, legal definitions vary from jurisdiction to jurisdiction. Meanwhile, lawmakers continue to refine criminal statutes to reflect evolving social attitudes about rape. Of course, in some situations, guilt is clearer than in others. For example, where a defendant surreptitiously drugs a victim to unconsciousness, criminal conduct is obvious: Intoxication caused the unconsciousness, which negates consent. Plus, an unconscious, inert person plainly places a defendant on notice of an inability to consent. We can all agree that this is the worst kind of criminal, predatory intent in sex crimes involving intoxication.
Danny Cevallos
But not all cases are so clear; it's the tougher cases that challenge legislatures to clarify concepts of capacity, consent and intoxication. Some states appear to require not only substantial impairment of the ability to resist or consent but additionally require that the offender have reason to believe the ability to resist or consent is substantially impaired.
    "(T)here can be a fine, fuzzy, and subjective line between intoxication and impairment. Every alcohol consumption does not lead to a substantial impairment. Additionally, the waters become even murkier when reviewing whether a defendant knew, or should have known, that someone was impaired rather than merely intoxicated. Of course, there are times when it would be apparent to all onlookers that an individual is substantially impaired, such as intoxication to the point of unconsciousness. On the other hand, a person who is experiencing an alcohol induced blackout may walk, talk, and fully perform ordinary functions without others being able to tell that he is 'blacked out.' "
    The court here seems to acknowledge that intoxication manifests itself in a myriad of symptoms and degrees. Contrast that with DUI and drugged driving laws, which incorporate often nationwide standards of "impairment," irrespective of someone's personal tolerances to drugs.
    In other states, the analysis is streamlined, requiring only that the victim was so mentally incapacitated that she was unable to consent to the sexual intercourse. The prosecution need not prove that the defendant knew, or had reason to know, that a victim was mentally incapacitated in this kind of jurisdiction.
    The challenge of prosecuting rape with intoxication is compounded by the same obstacles present in prosecuting rape cases without intoxication: By the time they are reported, physical evidence of sexual contact often dissipates. With that same time, evidence of the intoxicant is also metabolized and long gone.
    Therefore, even in the most serious cases -- such as the Cosby allegations, where someone claims to have been involuntarily drugged -- a prosecutor may be armed with no more than "he said, she said" testimony at trial. And, while a prosecutor typically does not need to introduce actual scientific evidence of a specific intoxicant, securing a conviction on the testimony of intoxicated victims or equally intoxicated witnesses alone is a daunting task.
    So, what do university campuses have to do with this discussion? There are far more of these institutions than states, and they are each an independent laboratory for definitions of sex and consent, usually found in their student handbook. Plus, federal and state legislation increasingly influences the investigation and definition of campus rape. While the laws vary from state to state, at college campuses, the rules are all over the place.
    College students customarily are governed by their sexual misconduct policies, which loosely mirror our criminal prosecution format (but without all those nitpicky constitutional guarantees or individual liberties of our American justice system).
    For example, Beloit College "requires a non-intoxicated, verbal, mutually understood 'Yes' for sexual contact or intercourse to be considered consensual." Of course, some establishments are even stricter than that: Liberty University's code of conduct simply prohibits premarital sex of any kind.
    Generally, universities have substantial discretion in defining culpable conduct, especially if they want to broaden the definition in favor of putative victims. And legislators are encouraging them to do just that. California's recent "yes means yes" law, for example, is the first to make "affirmative consent" language part of school sexual assault policies.
    Bottom line? If you're a university student, you probably shouldn't even play a game of "Spin the Bottle" if you are within 500 feet of an open wine cooler, or a capful of cough syrup. And that's not being glib, it's being safe: From a legal standpoint, it's simply not worth the life-altering risk to would-be defendant or victim.
    Universities are not bound by the strictures of due process or presumptions of innocence. The student defendant who finds himself simultaneously prosecuted for a crime and also subject to disciplinary proceedings at school often learns that he has more protections and guarantees in state court than before some amateur university panel. That means that the lines between intoxication, consent and rape at a university depend on the policy of the university one attends, and the whims of whatever nonlegal professional presides over his noncourt hearing.
    In a way, sexual assault and intoxication have parallels in DUI laws. All states have "zero tolerance" laws for drivers under 21. If you drink, drive, and you're under 21, the crime is all but established. Drugged driving laws generally do not inquire into an individual's unique tolerance or reaction to drugs. DUI law doesn't care if that guy from your frat house appears fine after a keg stand and several bong hits. Drugged driving liability centers on the binary question of whether any drugs were present at all in the bloodstream during the act.
    Are we moving toward "zero tolerance" sex while intoxicated? Maybe.
    With the patchwork of ever-evolving definitions of consent and burdens of proof, a generation of college students, citizens and Tinder users are on notice: Drink and hook up at your own peril.