A Call for Change in Central Michigan University's Sexual Misconduct Policy

11:19 AM College Lawyer Blog 0 Comments

Tuesday, 6/7/16

MOUNT PLEASANT, MI     

1 in 4 women will undergo sexual assault in college, a statistic that has remained steady since the 1980s.  It is estimated that roughly 5% of women on college campuses experience rape or attempted rape, with only 11% of these collegiate rapes being reported.  The reporting number is even lower for those who experience rape in the presence of drugs and alcohol, yet, 90% of rapes on college campuses involve alcohol.

With that being said, it is a university's duty to maintain a strict, thorough, and fair sexual misconduct policy.  Some schools, such as Virginia Commonwealth University, are subject to a mandatory reporting law.  University staff is obligated to report any potential sexual assault that they catch wind of, with or without the consent of the victim.

While the policy was put into effect with the best intentions, it also raises some concerns.  Reporting a sexual assault or rape without the consent of the victim can come with consequences.  Not only can it potentially re-traumatize the victim, but it can further loosen their grip on their control of the situation. Being the victim of a sexual assault is mentally arduous in and of itself.  Being subjugated to an unwanted investigation can be just as traumatizing and invasive as the assault (yes, some sexual assaults go unreported because the victim does not want to deal with personally perceived "unneeded" stress that comes with it—especially in a college setting, where the victim is already subjugated to the stresses of rigorous academics).  However, only a small number of colleges enforce the latter policy.

As of 2007, it has been established that the highest risk for sexual assault occurs when a woman becomes voluntarily intoxicated.  That risk increases by eight-fold when a woman engages in what One In Four, a non-profit organization dedicated to rape prevention, calls "heavy drinking."

Thus, it is of the utmost importance for a university to clearly define the term "consent" in regards to their sexual misconduct policy— something that Central Michigan University fails to do in their recent revision of their own sexual misconduct policy.

The Sexual Misconduct Policy, effective as of March 16, 2016, includes, but is not limited to dating violence, domestic violence and intimate partner violence, sexual assault, sexual exploitation, sexual harassment, and stalking.

Sexual Assault is defined as touching of a sexual nature without consent. 

The Policy goes on to describe consent as: 

"A. It is the responsibility of the person who wants to engage in sexual activity to ensure that the other person has consented to engage in the sexual activity. 
B. Lack of protest or resistance, or silence does not constitute consent. 
C. The existence of a dating relationship between the people involved or the existence of a past sexual relationship does not prove the presence of, or otherwise provide the basis for an assumption of, consent. 
D. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another person. 
E. Consent must be present throughout the entire sexual activity and can be revoked at any time. 
F. Consent cannot be obtained from a person who a Respondent knew, or reasonably should have known, was asleep, unconscious, or otherwise Incapacitated, as defined by this Policy, whether due to drugs, alcohol, medication, or some other condition.
G. Consent cannot be obtained from a person who does not have the capacity to give consent under the laws of the applicable jurisdiction because of that person’s physical or mental disability. 
H. Consent cannot be obtained from someone through intimidation, coercion, force, or threat of coercion or force." 

In regards to point F, the term "Incapacitated" is defined as lacking the ability for self-care or to understand the nature of that person's conduct. Gauging the latter term is not always easy.  It is safe to say that the individual hunched over the toilet seat is off-limits, but how is one to accurately assess how incapacitated someone is if they are heavily intoxicated but still high functioning?  Being black out drunk and still possessing the ability to walk and talk is an anomaly that presents an interesting challenge to the idea of consent.

It is impossible for anyone to determine whether a high functioning drunk is black out, especially when they are able to walk and talk.  Nevertheless, someone that is black out drunk, no matter how functional, should be deemed unable to give conscious consent.

I ask for you to take into consideration the following scenario: A group of girls is at a party. One of these girls, Susie, has drank to the point where she can no longer form new memories, rendering her incapacitated. Despite that inability, other than some minor motor and judgement impairments, she is functioning rather well. On the other side of the room is Jack, who, like Susie, has been drinking quite a bit, to the point where he can longer operate a motor vehicle but is still capable of making memories despite his motor and judgement impairments, and is just having a good time with his friends.  As it happens, Susie and Jack are introduced by mutual friends. They have good chemistry, and, enticed by Susie, Jack invites her back to his place.  She agrees to go back with him.  Once there, they engage in sexual activities, all of which Susie gives willing consent to, despite her inability to form new memories. Morning comes and Susie awakens in a stranger's bed, undressed and totally unaware of what occurred the night before. Her mind runs wild with everything that could have potentially occurred and she panics, files a police report and alleges that Jack sexually assaulted her.

Now, the million dollar question: did Jack commit sexual assault?  Is he deserving of being stripped of his education, faced with potential incarceration, and to live a life deemed as a social pariah?

In this scenario, Jack is not lingering on the outskirts of the party looking for prey. He is not sipping on a red solo cup full of water, watching his target drink, offering them more and more alcohol. He is not feeding his target alcohol until the point of immobilization and confusion, balancing the girl against his sober self as he drags his target home like a cheetah drags an incapacitated gazelle up a tree for a meal.

Yet, Jack, who maintained Susie's consent, although she does not recall, is being faced with the possibility of a sexual assault conviction. Something that, if convicted, will follow this college-aged man the rest of his life.

Building upon the previous, Central Michigan University's Office of Civil Rights and Institutional Equity page, under the heading "Sexual Misconduct" provides a link to "Nine Myths about Sexual Misconduct." Under the fifth point, "Consent is a simple, yes," it is written that, "At CMU, consent means 'a voluntary and affirmative mutually understandable communication of willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous action.'"

It immediately follows under point six, "Using a substance and becoming incapacitated justifies sexual misconduct," that, "A person who has consumed enough of a substance to become incapacitated cannot give consent to sexual interaction. This means even if an incapacitated person demonstrates a willingness to engage in sexual activity through words or actions, consent is not present." It goes on to say that if sexual interaction occurs, it can be considered sexual misconduct as outlined by Central Michigan University's Sexual Misconduct Policy.

As a consequence of the egregious policy above, one can only assume that Jack will be found guilty of sexual misconduct and forced to suffer the punishment that ensues with a conviction of that nature.

Before digging deeper into point six, it must be noted that the policy was developed to ensure student safety, and because the University considers student safety of paramount importance, it warrants respect, no matter how absurd it may seem. The reason I use the word absurd is because, as I can only posit, it automatically places a large number of students potentially guilty of sexual misconduct.

Alcohol and other substances capable of rendering an individual incapacitated run rampant in college towns. Even though it is arguably the most incapacitating drug, alcohol is the drug of choice for most college students. Correspondingly, with a surplus of house parties and a different bar special every night, drinking is expected. Likewise, with drinking comes a show of bravado that otherwise remains untapped and suppressed.  Hence, it is expected that sexual encounters will stem from drinking.

It has already been established that even when someone is black out drunk, no matter how functional, they are unable to give conscious consent.  Therefore, it seems as though Jack would be guilty of sexual assault under point F, regardless of point six of the nine myths. But, I must ask, should Jack have reasonably known that Susie was so incapacitated?  For, "Consent cannot be obtained from a person who a Respondent knew, or reasonably should have known, was asleep, unconscious, or otherwise Incapacitated..." 

There was absolutely no way for Jack to know that Susie was black out, especially when she did not seem too impaired.  I suppose it would be fair to say that any sort of impairment at all should have warded Jack away but remember that Jack and Susie have never met, so once again, how would he be able to gauge her impairments?  Furthermore, Jack was intoxicated too. So, how can anyone expect to Jack, whose judgment is already impaired, to accurately assess Susie's impairment? It is impossible.

Not only is it impossible, but it is extremely unlikely to be taken into consideration in the first place.

If we deem one person unable to give consent on behalf of oneself, can we hold their counterpart responsible for making a reasonable judgement on the status of someone else and that someone else's ability to give consent? I would certainly hope not. How does one justify telling someone that they are incapable of knowing what is best for themselves despite expecting them to know what is in the best interest of others?

Moreover, can it be said that both parties are guilty of sexual assaulting each other?

Consider another scenario: Two individuals meet at a bar, drink a few drinks, and become incapacitated to the point where they can no longer operate a motor vehicle, but are capable of making memories despite their motor and judgement impairments, mutually decide to engage in sexual activity, who is at fault?  Both gave consent, but according to point six of the nine myths provided by Central Michigan, consent is not present for either individual.

Nonetheless, almost all of the inebriated encounters that occur within the University's jurisdiction, which are all in violation of Central Michigan's Sexual Misconduct Policy, occur mutually, with consent and occur without problem.  The problem that exists, exists within the lack of clarity and loopholes within the Policy. Not all drunk, hazy, sexual encounters are sexual assaults. The University realizes this, but sanctioning all incapacitated sexual encounters is not an effective measure when it comes to preventing true sexual assault.  Student safety is a paramount, yet, this policy puts a large number of good-natured students at risk of lifelong penalty.

If Central Michigan University truly considers student safety to be of the utmost importance, which it does, it must amend its Sexual Misconduct Policy. There is a disturbing ambiguity that coincides with the Policy's definition of "Incapacitation" and it must be clarified.  Also, ambiguity exists within the phrase "...reasonably should have known..." under point F as detailed under the Policy's section titled 'Consent.'  "Reasonably" is never defined and, just like incapacitation, exists on a spectrum.  Lastly, the statute that an individual cannot give consent after consuming "enough" (another ambiguity) of a substance must be completely abolished. It is an absurdity that has the potential to haunt individuals, like Jack, for the rest of their lives.

Central Michigan University needs to develop a Sexual Misconduct Policy that ensures that true predators, those nefarious enough to sit and scope out a victim, those who go out with the intent to commit sexual assault are held responsible for their malicious actions, while good-natured individuals who made an error in judgement are not prosecuted for their inebriated mistakes.

Works Consulted:
Central Michigan University's Sexual Misconduct Policy
"Nine myths about sexual misconduct"
"Sexual Assault Statistics" from One In Four USA
"Campus Sexual Assaults" from University of Wisconsin-Oshkosh 
"College Students Think New Law is Good for Sexual Assault Victims, Research Finds" by Mallory Noe-Payne

Seth Canner

Assistant Editor-In-Chief, CLB

Law Clerk, Levitt Law Firm