The #MeToo meme has been front and center news ever since the Harvey Weinstein story broke. Many a career has since been ended by revelations from inappropriate workplace flirting to aggressive sexual assault. If the adults can’t navigate this potential minefield, what about the college students? If any group is in the trenches, it’s the kids in college.
This demographic is characterized by raging hormones, immature decision-making skills, and for many, unfortunately, binge drinking. Yet, they are expected, actually required, to navigate the very treacherous territory of sexual consent. The so-called “active consent” lawenacted in California in 2014, applicable to most colleges and universities in California, requires the schools to have a policy in place that sanctions sexual misconduct. Sexual misconduct can be heinous acts such as a forced and violent rape, but it can also include an ambiguous sexual encounter. This gray area includes sex that was not affirmatively consented to.
What does that mean? It’s not entirely clear and the students subject to this policy cannot be expected understand the nuances of affirmative consent. To begin, very often, both parties are inebriated. But under the active consent law, a person is not capable of consenting to sex if she (and it’s almost always a female) is “incapacitated” by drugs or alcohol, even when her intoxication was of her own volition. At what point does one become incapacitated? The law defines it a state induced by drugs or alcohol that prevents a person from understanding the fact, nature, or extent of the sexual activity. If a person has sex with another who is “incapacitated,” even if she was the initiator or aggressor, consent to the sex is, under this law, impossible. (It is similar to the laws that make consent of a person under the age of 18invalid because it assumed a minor does not have the capacity to consent.)