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P: You’ve heard that voice mail of [Emily], haven’t you?
Turner: Yes.
Turner is being cross-examined by the prosecutor. She’s referring to the slurred phone call
Emily Doe made to her boyfriend sometime after she blacked out.
P: You would agree with me that in that voice mail, she sounds super intoxicated?
Turner: Yes.
P: That’s how she was with you that night, wasn’t she?
Turner: Yes.
P: She was very drunk, wasn’t she?
Turner: Not more than anybody else that I had been with.
1
At the time of the incident, her blood-alcohol concentration was .249. His BAC was .171. She was three times the legal
limit. He was twice the legal limit. These BAC numbers are according to expert-witness testimony.
2
A group of Canadian psychologists led by Tara MacDonald recently went into a series of bars and asked the patrons to
read a short vignette. They were to imagine that they had met an attractive person at a bar, walked him or her home, and
ended up in bed—only to discover that neither of them had a condom. The subjects were then asked to respond on a scale
of 1 (very unlikely) to 9 (very likely) to the proposition: “If I were in this situation, I would have sex.” You’d think that the
subjects who had been drinking heavily would be more likely to say they would have sex—and that’s exactly what
happened. The drunk people came in at 5.36, on average, on the 9-point scale. The sober people came in at 3.91. The
drinkers couldn’t sort through the long-term consequences of unprotected sex. But then MacDonald went back to the bars
and stamped the hands of some of the patrons with the phrase “AIDS kills.” Drinkers with the hand stamp were slightly
less likely than the sober people to want to have sex in that situation: they couldn’t sort through the rationalizations
necessary to set aside the risk of AIDS. Where norms and standards are clear and obvious, the drinker can become more
rule-bound than his sober counterpart.
3
Is drunken consent still consent? It has to be, the ruling goes on. Otherwise the vast majority of people happily having
sex while drunk belong in jail alongside the small number of people for whom having sex while drunk constituted a
criminal act. Besides, if M can say that she was not responsible for her decisions because she was drunk, why couldn’t
Benjamin Bree say the same thing? The principle that “drunken consent is still consent,” the ruling points out, “also acts as
a reminder that a drunken man who intends to commit rape, and does so, is not excused by the fact that his intention is a
drunken intention.” Then the Bree ruling comes to the question taken up by California’s consent. What if one of the parties
is really drunk? Well, how on earth can we decide what “really drunk” means? We don’t really want our lawmakers to
create some kind of elaborate, multivariable algorithm governing when we can or can’t have sex in the privacy of our
bedrooms. The judge concludes: “The problems do not arise from the legal principles. They lie with infinite circumstances
of human behavior, usually taking place in private without independent evidence, and the consequent difficulties of
proving this very serious offence.”
4
It is also, by the way, surprisingly hard to tell if someone is just plain drunk. An obvious test case is police sobriety
checkpoints. An officer stops a number of people on a busy road late on a Friday night, talks to each driver, looks around
each car—and then gives a Breathalyzer to anyone they think is drunk enough to be over the legal limit. Figuring out who
seems drunk enough to qualify for a Breathalyzer turns out to be really hard. The best evidence is that well over half of
drunk drivers sail through sobriety checkpoints with flying colors. In one study in Orange County, California, over 1,000
drivers were diverted to a parking lot late one night. They were asked to fill out a questionnaire about their evening, then
interrogated by graduate students trained in intoxication detection. How did the driver talk? Walk? Was there alcohol on
their breath? Were there bottles or beer cans in their car? After the interviewers made their diagnoses, the drivers were
given a blood-alcohol test. Here’s how many drunk drivers were correctly identified by the interviewers: 20 percent.
5
In a remarkable essay in the New York Times, Ashton Katherine Carrick, a student at the University of North Carolina,
describes a drinking game called “cuff and chug.” Two people are handcuffed together until they can down a fifth of
liquor. She writes, “For the supercompetitive, Sharpie pens were used to tally the number of drinks on your arm,
establishing a ratio of drinks to the time it takes to black out—a high ratio was a source of pride among the guys.” She
continues:
The way we as students treat the blacking out of our peers is also partly responsible for its ubiquity. We actually think it’s funny.
We joke the next day about how ridiculous our friends looked passed out on the bathroom floor or Snapchatting while
dancing and making out with some random guy, thus validating their actions and encouraging them to do it again. Blacking
out has become so normal that even if you don’t personally do it, you understand why others do. It’s a mutually recognized
method of stress relief. To treat it as anything else would be judgmental.
6
Nor is it just a matter of weight. There are also meaningful differences in the way the sexes metabolize alcohol. Women
have much less water in their bodies than men, with the result that alcohol enters their bloodstream much more quickly. If a
195.7-pound female matches a 195.7-pound male drink for drink over four hours, he’ll be at 0.107. She’ll be at 0.140.
7
Adults feel quite differently. Fifty-eight percent of adults think “drinking less” would be very effective in reducing sexual
assault.
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