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I’m talking about having sex when you’re super wasted, and maybe the other person is too—cases like the Occidental one, where someone is capable of actively going through the motions of sex and even verbally (and textually) consenting to it but is so drunk that their decision-making ability is possibly impaired.

Despite universities’ moves to punish drunk sex, it’s simply not always clear when it’s OK to have sex with people when you, or they, or both of you have been drinking.

It’s clear to all reasonable people that it’s cool for two sober men and/or women to enthusiastically consent to sex and that when one person is unconscious, that’s assault.

But there is an ambiguous middle ground between clear-eyed sober and passed-out drunk where one or both parties may become too intoxicated to meaningfully consent to sex, and schools have now been tasked with discerning that line for themselves.

It’s politically expedient to claim that there’s a clear line between consensual sex and rape, but the truth is that in cases where a victim’s intoxication is the sole indication that an assault has occurred, the distinction is hard to draw.

I’m not talking about “gray rape,” the term Laura Sessions Stepp weirdly coined in in 2007 to refer to incidents that are clearly rape but that victims refuse to label as such out of shame, self-blame, or coercion.

So, many schools, like Occidental, have adopted a higher threshold, forbidding sexual contact, including kissing, oral sex, and intercourse, with anyone who is “incapacitated.” That’s the line favored by Brett Sokolow, the man who’s emerged as the country’s leading consultant on campus rape adjudications.

Sokolow, president and CEO of the risk management firm the NCHERM Group, is the guy that schools call when they need to figure out how to comply with Title IX and fend off civil rights lawsuits from students.Jane and John met in their first week as undergrads at Occidental College.They enrolled in the same freshman seminar, chatted on a field trip, pregamed for a school dance together, and then—on a night when they both claim they were more intoxicated than they had ever been before—they had sex.I’m also not calling back to that old “he said, she said” trope, whereby rape charges are hard to stick because one party alleges that she didn’t consent to sexual activity and the other asserts that she totally wanted it.And I’m not raising the specter of false accusations, the rare phenomenon in which a vengeful woman “cries rape” after engaging in consensual sex (or no sexual activity at all).That’s taking advantage of a situation in a way that I would argue as being rape.

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