Protecting the Party Girl: A New Approach for Evaluating Intoxicated Consent

I. INTRODUCTION She sees him across the room, and he catches her eye, returning her smile. She raises her glass, as does he, and they toast one another silendy. Soon, he joins her in the line at the bar and buys her another drink. They talk and dance and drink and flirt. Hours later, he walks her home, and he reaches for her at the door. Enjoying the kissing and caresses, she lets him slide her keys out of her hand. He opens her apartment door, lifts her up, and gallantly carries her over the threshold, setting her on the couch. She thinks about how lucky she is to have caught his eye tonight. The kisses and caresses resume as she murmurs, "It's getting late." Suddenly, she feels something cold and realizes that he is reaching into her pants, tugging them down, as he slides his hand inside. She says, "Wait. I need to sleep." He says, "I've been waiting to do this all night." She closes her eyes. Moments later, she feels a sharp pain piercing her body. Stunned, she cannot speak or move. It is too late. In allegations of rape and sexual assault the issues of consent and resistance are slippery ones, which become even more so when alcohol is added to the scenario. Drinking is a social activity for many, and "so it is not surprising that when one party is consuming alcohol, the other party is consuming it as well."1 The tendency for mutual intoxication, combined with the fact that alcohol is present in approximately fifty percent of situations involving allegations of sexual assault and rape, make it even more important that society address the ongoing problems that intoxication has on a woman's ability to resist or consent to sexual activities.2 This Article endeavors to provide some guidance to courts and juries in evaluating whether there was valid consent to intercourse when alcohol has been consumed by one or both parties. In doing so, this Article will attempt to address the more difficult cases involving scenarios that are closer to the line dividing consent from non-consent. Consequently, this Article will not address the so-called "easier" cases involving substantial force, coercion, threats, weapons, or situations where one party administers intoxicants in an effort to incapacitate a victim to the point where consent cannot be obtained.3 Because of the varied effects alcohol has on perceptions, this Article proposes a sliding-scale approach toward evaluating consent that would establish an appropriate level of explicit consent that varies with the number of drinks or level of intoxication of the parties. It may be appropriate to raise the level of explicitness required to constitute effective consent with the number of drinks or level of intoxication of the parties. To help establish the applicability of a sliding-scale approach, this Article will address the issues of when explicit consent is sufficient as well as how to deal with problems surrounding a woman's use of equivocal language when providing consent. When an affirmative "Yes, I am sure," will be the only sufficient indication of consent will depend on the circumstances, because levels of intoxication will vary based upon the size and weight of the individuals, their alcohol tolerance, and other factors. Therefore, any standard must be a flexible one. A sliding scale provides an opportunity for the jury to consider the level of intoxication and its relation to the appropriate or reasonable level of explicitness required for adequate consent by mandating a more unequivocal, more affirmative yes the more the female has had to drink. In other words, more explicit consent will be required the greater the amount of alcohol consumed. This sliding scale also may be applied to men, recognizing that the male is more responsible for obtaining the requisite level of explicitness for effectively legal consent the fewer number of drinks he has consumed in the relevant time period. The verbal resistance issue also demonstrates the usefulness of a sliding scale when evaluating non-consent. …