Many Title IX cases involve allegations that consent was not valid because one party was too incapacitated to confer valid consent. While colleges may vary in their exact description of consent, all definitions share similar concepts. Participants to sexual activity must be sure that there is a mutual agreement to engage in each increment of activity. Consent must be freely given through words or actions. So, the easiest answer to discern consent is to obtain a verbal “yes”. If not, one person is inferring consent from non-verbal cues, such as removing clothes, grabbing a condom or engaging in mutual petting.
Consent and Incapacitation
Consent cannot be freely given when a person is incapacitated. A person who is incapacitated cannot give consent when the person cannot understand the “who, what, when, where, why or how” of their sexual interaction. Outward signs of incapacitation include stumbling, slurring words, or unconsciousness. Incapacitation rises above drunkenness, or what is technically referred to as intoxication.
Putting Labels to State of Intoxication
Rather than using the term incapacitation, however, college students often refer to various states of intoxication with labels like blackout, brownout, grayout, and cross-faded. But these labels are not technical terms with universal definitions. Indeed, we have found that even on the same college campus, different students have different understandings of the same terms. However, here are the most commonly understood definitions of these terms:
This term is often used to describe a temporary lose of consciousness. Some students experience total memory loss. However, what can get complicated is that someone can appear sober while blacking out to the point of having no memory of an event.
This term is used to describe a person that has fragmentary or spotty memories of an event due to alcohol consumption. For example, a student may speak with a friend and recall getting home, but have no recollection of how they home.
This term lands between blackout and brownout drunk. In this state, an individual is too drunk to have just spotty memories, but not all is totally lost.
This means that a person is drunk and high at the same time, and thus, the effects of both substances are more intense.
Labels May Lead to Confusion
While it’s helpful to understand what these terms mean, it’s important to realize that using these labels can make assessing consent confusing.
Staying close to sober is the only surefire method to ensure that a person can obtain, properly assess and confer consent. There is a large difference between enjoying a beer or glass of wine on a date (assuming both parties are of legal age to drink) and trying to assess consent after a long night of partying. If you want to hook-up with a person, have a conversation with your partner and make sure there is clear communication that sex is the desired end. Don’t get lost in the weeds of blackout, brownout, grayout, and cross-faded. Instead, obtain a clear yes, which will ultimately avoid confusion and stress later on.
Our nationwide Title IX attorneys are here for you. To discuss further, or for assistance navigating a Title IX matter, contact Susan Stone (SCS@kjk.com; 216.736.7220) or Kristina Supler (KWS@kjk.com; 216.736.7217).