Jan 252009
Authors: Kathleen Harward

Editor’s note: From now on, Student Legal Services will be using their column to answer your legal questions. Please e-mail your questions to Kathleen Harward, director of SLS, at kathleen.harward@colostate.edu.

A: The answer depends on whether your partner is still legally capable of consenting. The test under Colorado law is whether your partner “is incapable of appraising the nature of [his or her] conduct.” It’s a very tricky test, and to complicate matters further, being voluntarily intoxicated yourself does not excuse you from misreading your partner’s ability to consent.

If that sounds like a double standard, it is. But that is the law.

It’s treacherous territory, where you can easily make a mistake with irreversible consequences. Take the famous case that tore apart the campus and community at Brown University in 1996:

Sara and friends started drinking shots of vodka and apple juice at about 9:30 p.m. About an hour later, Sara walked a few blocks to one party and then moved on to a fraternity to look for someone she had been dating.

About 11:30 p.m., Adam, who didn’t know Sara, found Sara in his friend’s room in the fraternity house, lying on the floor next to a puddle of vomit. According to Adam, he invited her to his room, she walked unassisted, gave her a glass of water and offered to let her sleep on his bed.

He said they laid, fully clothed, back-to-back on the bed. Then, according to Adam, Sara began kissing him and making advances, and she asked if he had a condom. Adam said they had sex using a condom and then smoked cigarettes and talked for several hours. He said he asked for her phone number in the morning and she left.

Sara said she woke up in Adam’s bed with no memory of anything past 10:30 p.m. the night before. Sara alleged sexual assault, and Adam was found guilty and punished for misconduct by the university.

Today in Fort Collins, such a case would surely involve prosecution and court, not just university proceedings.

Bottom line: Some people in authority contend that any amount of alcohol or drugs renders consent invalid. Be smart and make sure your partner really knows what he or she is doing. Sometimes, even when your partner is saying yes, you should say no.

Kathleen Harward is the Director of Student Legal Services. SLS’ column appears biweekly Mondays in the Collegian. Letters and feedback can be sent to letters@collegian.com.

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