Consent and Intoxication With Title IX Coordinator Marjory Fisher
Written by Ross Chapman
CW: This article discusses sexual assault as well as incapacitation and memory loss due to alcohol.
On Thursday, Title IX Coordinator and Associate Vice President Marjory Fisher sat down with a small group of students for one of many Sexual Respect Initiative workshops offered during October. All incoming students are required to participate in one of the many and varied SRI options. Fisher’s event focused on the topics of incapacitation and consent with particular attention towards alcohol, and how the university as an adjudicating institution thinks of the connection of those ideas.
Fisher’s first major point was that it is possible to have consenting, positive sexual interactions while using alcohol or other drugs. For Columbia and for the state of New York, intoxication occurs on a scale. While intoxicated people can give consent, incapacitated people are incapable of doing so. Incapacitation occurs when an individual lacks the ability to knowingly choose to participate in sexual conduct because they lack the ability to understand their decisions and make rational, reasonable choices. Signs of incapacitation considered by the university include dizziness, slurring, unawareness, and vomiting, among others.
Fisher also emphasized that even blacked out individuals may be able to consent under Columbia’s and New York’s definitions. Blackouts occur when the hippocampus cannot write memories, resulting in the inability to recall events in fragments or en bloc. Fisher shared anecdotes from her experience of men and women with no memory who were, by bystander accounts, totally lucid and aware during their periods of amnesia. Because memory-writing may be independent from other functions, Fisher explained that a respondent may not be able to use their blackout as evidence of their inability to consent at the time of a sexual encounter or assault.
However the state of intoxication may affect a survivor, respondents cannot use their drunkenness as an excuse for sexual assault. Even if a person was too drunk to determine if a partner could consent, the burden for committing Gender Based Misconduct comes when an individual “knows or should know” of the incapacity of another. If a reasonable sober person could tell that a survivor was incapacitated, then that shows to Columbia that their assaulter “should have known” and can be held responsible. Conversely, if the respondent had no reasonable way of knowing that someone was incapacitated (for instance, if the respondent did not see any alcohol consumed or observe any signs of incapacitation), that may make it challenging for Fisher to push forward with a case.
Fisher also drove home several consent items not unique to alcohol: consent must be affirmative and made as a knowing, voluntary, and mutual decision among all parties involved. Coerced, forced, or underage sex cannot be consensual, and a person cannot consent if they are unwillingly restrained, asleep, or unconscious.
In her conclusion, Fisher taught that if a student has any doubt that someone might be unable to make a rational, reasonable decision, they should never push that line. One night of sex is never worth the trauma caused for all parties. Fisher encouraged bystander intervention as a means of preventing students from taking advantage, or being taken advantage of. She encouraged participants to read the sentencing letter of the anonymous survivor of Brock Turner’s assault, and to read Joe Biden’s letter to the survivor.
Unfortunately, this event only had about ten students present, which pales in comparison to more popular (and less informative) events. Predictably, the men in the workshop generally asked questions from the perspective of a respondent, attempting to point out flaws in the Title IX system. Fisher did an admirable job handling questions, but could have spent more time defining her terms and providing evidence before responding to often accusatory crowd remarks.
Associate Vice President Fisher will facilitate “Title IX” 101 at 5 pm on Tuesday the 24th and “Sexual Harassment – On Campus and In the Workplace” at 5 pm on Thursday. Sign up on the Sexual Respect website.
Bwog has reached out to AVP Fisher for permission to post the slides from this presentation.
An alternative completion of the Sexual Respect Initiative via The Arts Option