One more issue that the so called Yes Means Yes California statute on sexual assault in colleges raises is how sex between people who are intoxicated is regulated. (For my earlier discussion of the statute, see here.)
The statute requires colleges to adopt:
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
These provisions address two aspects of intoxication. One involves a situation where the intoxication of the accused led him or her to conclude that the complainant had affirmatively consented. The other involves a situation where the the complainant appeared to affirmatively consent, but was unable to do so because of intoxication.
Clearly, the statute treats the intoxication of the complainant and the accused quite differently. If the accused’s belief in the complainant’s consent was due to his or her intoxication, that’s tough. By contrast, the apparent affirmative consent of the complainant does not count if the accused reasonably should have known the complainant was intoxicated and unable to consent.