Illustrations by Lucy Han

When Does Drunk Sex Become Rape?

In her first semester at the University of Portland, Clara Ell says that her classmate sexually assaulted her while she was too incapacitated to consent. He insists they had consensual sex—and, in a subsequent disciplinary hearing, school...

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Feb 9 2017, 4:05pm

Illustrations by Lucy Han

In the first semester of her freshman year at the University of Portland, Clara Ell claims she was sexually assaulted by a male student in her dorm room after a night of heavy drinking.

The way the night ended is difficult for her to remember, but the way it started is crystal-clear: Clara—a lanky girl with big brown eyes and a long mane of curls—wandered a few blocks off-campus to a house party. She and her high school friend-turned-roommate, Krista Baldwin, were recent recruits to the women's lacrosse club team, and on this night, the captains were hosting a "team bonding" party. The theme of the party was "Star Spangled Hammered"; Clara wore denim cutoffs, a blue and white striped tank top, and a red sweatshirt. She borrowed a hardhat from a friend, decorated with an all-over flag print.

Around 9 PM, the 18-year-old girls walked five blocks from their dorm on the small Catholic campus to the party. The all-girls party was still quiet when they got there, and the freshmen joined in a round of a drinking game called "Rage Cage" with their teammates, a flurry of ping pong balls bouncing into red Solo cups filled with beer. Like most drinking games, it ends with one player drinking a lot of beer from the filled-to-the-brim "bitch cup" at the center of a table.

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"I lost," Clara recalls. She chugged the bitch cup.

The rest of the party unfolded like college parties tend to: It got bigger as the hours wore on. Drinking games turned to tequila shots, and tequila shots turned to chugging from bags of cheap wine being passed around the room. Clara remembers that someone threw up in the front yard. After she, Krista, and another friend—who asked to remain anonymous for this story—saw UP Public Safety officers pulling up, they scurried off into the North Portland neighborhood. At another house, Clara swigged directly from a bottle of Fireball whiskey. Her friends told her that part later; she has no recollection of it.

Krista remembers. Her roommate was tanked. "I stopped drinking just to make sure she was OK," she recalls.

Back at the dorm, Krista sat Clara down on the floor and fed her snacks before leaving again. Clara has flickers in her mind of sitting on the floor eating, and that she had her iPhone in her hand when, at 1:57 AM, it buzzed. It was a friend, Jack (not his real name). "Hey," he said. A few minutes later he added, "I hope you're doing well Clara, goodnight."

Clara and Jack, a classmate of hers, had a short-lived romantic relationship, but Clara says they had not had sex before that night. Krista, too, had befriended Jack—calling him "her best friend on campus"—but she says things got weird for all of them after he and Clara kissed and messed around.

According to Clara, Jack had feelings for her, but she wasn't into it. Two weeks before, she had broken it to Jack that she didn't feel the same about him. It was awkward, and Clara told Jack a week later that maybe they shouldn't talk at all. "I said, 'I just want to be friends,'" she remembers. She felt bad that she didn't like him back.

Illustrations by Lucy Han

That night, in a series of text messages provided to Broadly by Clara, Clara texted Jack back, urging him not to "shut me down so quick." "I wanna be pals, I'm sorry things didn't work out for us past that," she said. "How are you?"

The teenagers began a rapid-fire text exchange; Jack said he was "a little drunk still," and Clara responded that she was "still drunk too." The conversation went on in the form of long, slightly anguished text bubbles typical of the young and inebriated. Clara apologized for treating Jack poorly and asked why he still even liked her, and he replied, "I think that you're really pretty. You have a great body, you're not afraid to be yourself, and I love your lips. I could kiss you forever."

Soon, though, Clara began to send him garbled, misspelled missives: "I want to be your friend because I don't want to lose you," she wrote. "That isn't a Cersley mean that I'm not drunk do you just mean so that's what's easier. I hope you understand man, I'm also pretty fucking waste of right now he can't tell ha ha ha ha."

Jack told her that he couldn't make out exactly what she meant, to which Clara replied that she had been trying to explain that she was "still into you too," adding, "I'm sorry, again drunk texts." They continued talking, and Jack said he wanted to see her; Clara demurred, writing, "Tonight is not the best idea." When asked why, she said, "Because I'm drunk haha and who knows what I'll say or do without Keaton around," misspelling her roommate Krista's name, then explaining that Krista had gone to a nearby gas station.

"What if I just showed up anyway?" Jack asked.

"I don't know what would happen," said Clara.

The two continued to text and then, a few minutes later, Jack sent another text: "How about you let me in," he said, "Then we can talk about it."

"Where are you?" Clara wrote.

"Outside."

Clara went to see whether he'd actually made the long walk across campus to her dorm, despite her asking him not to. She says she opened the door and he came in, though she does not remember inviting him to do so. He was a friend, despite whatever romantic feelings might have brewed between them in the past. "He lives across campus. He wouldn't be in the area," she says.

But Clara says the whole thing is a blur: the texts, letting Jack into her dorm and her room, removing any clothing—which Jack alleged in a conduct hearing 30 days later that she did. Clara hazily recalls producing a condom from a desk drawer and placing it on a bedside table.

She recalls saying "no" once after Jack was already having sex with her, after he flipped her over and tried to penetrate her anally. He laughed, Clara recalls, and resumed vaginal sex. Clara doesn't recall when her roommate and their other friend returned to the room and flipped on the light—just that there was "suddenly some yelling and then he laughed a bit and left."

Krista recalls the shock of seeing her friend in bed with Jack: "Her eyes were barely open," she says. She backed out of the room—"I needed to leave the situation for a second because I didn't know what to do"—and ran into her neighbor's room. When she returned moments later, Jack was gone.

At 3:02 AM, Jack texted Clara. "Enjoy the wrath of Krista," he wrote, including an emoticon of a face with its mouth zipped shut. Nine minutes later, he sent another text, apologizing: "I don't know what's going through your head right now but if sober you wants us to be just-friends then that's what will happen. I'm sorry for letting things go beyond that tonight."

I wasn't there when she was drinking so I don't know how much she's had. Do you want me to carry around a breathalyzer?

Krista says that she and another friend went to Jack's dorm room after the incident, confronting him. Later, Krista fought with Jack over text. "I didn't go over there to do anything," Jack wrote. "I thought I might kiss her or something."

"She's just so drunk," Krista replied.

The two continued arguing via text message—Jack insisted that he was drunk, too, and that he'd "hooked up" with Clara sober before. Krista told him that didn't "make it ok now" and reiterated that Clara was "so much more drunk than you."

They debated whether Jack should have reasonably known that Clara couldn't give consent: "It's not like I just went in there and tore her clothes off. Not to mention, I wasn't there when she was drinking so I don't know how much she's had," Jack said. "Do you want me to carry around a breathalyzer? Sorry that I like the girl."

But Krista was firm. After the two had exchanged a few more texts, she wrote, "Dude. She was way drunker than you were. She was not in the mind set [sic] to give you consent. What happened shouldn't have," to which Jack responded, "Consent is mutual. I didn't urge Clara into anything, and neither of us were in the right mind to give consent. I realize my fault in that, and I realize what happened shouldn't have, but I did not take advantage of Clara tonight because the fact is I didn't drive what happened tonight."

At 4:23 AM, Jack texted again Clara again, informing her that her friends had visited him. "In case you don't know this, I would never try to hurt you Clara. I let things go as far as I did because I didn't think you were any more drunk than I was," he wrote. "I should have known better."

Dude. She was way drunker than you were. She was not in the mindset to give you consent.

The issue these teenagers were arguing over through text that night encapsulates some of the biggest points of contention in the heated debate over sexual assault on college campuses across the nation: What constitutes consent, and at what point is someone too intoxicated to give it? A number of rape awareness advocates that Broadly spoke to for this story emphasized that, while the campus rape movement made huge gains in recent years, there's still widespread confusion over the basic definitions of consent and sexual assault.

At the encouragement of advocates, some states have taken steps to more carefully define what, exactly, consent means. In California, one of the states to pass an affirmative consent law in recent years, consent goes beyond "no means no." According to state law, affirmative consent is defined as something that's affirmative, conscious, and ongoing. Other states are considering legislation, but most of the nation has yet to fold the definition into law.

When advocates like Jasmin Enriquez, a campus rape survivor who helms the nonprofit Only With Consent, speak to college campuses, they often tell students that consent simply means the other person is excited about having sex with you: "An enthusiastic and voluntary yes," she says. "Not the absence of a yes, not implied. And it can be revoked at any time."

Those definitions have been enough to spark controversy. Many conservative critics fear affirmative consent means that every sexual encounter could potentially be analyzed and interpreted as rape after the fact. In a 2015 article entitled "How Affirmative Consent Laws Criminalize Everyone," a Federalist writer called affirmative consent laws "a new state-mandated regime of sexual policing" and said they "trivialize sexual assault by turning nearly everyone who has ever dated into a sexual predator." Some self-professed feminists take issue with the affirmative consent standard, too, citing the potentially disastrous consequences of injecting conversational logistics into the steamy lead-up to sex. "Most people just aren't very talkative during the delicate tango that precedes sex," wrote Judith Shulevitz in the New York Times, arguing that affirmative consent laws could "make sex a crime under conditions of poor communication."

It's true that alcohol further complicates the conversation, says Sofie Karasek, the director of education at End Rape on Campus. "Sometimes people have asked me, 'What if we're both drunk? Are we sexually assaulting each other?'"

For Clara, there wasn't any question about what happened to her. She waited more than 24 hours, then she filed an online report saying that she was sexually assaulted to the school's Title IX Coordinator.

Title IX, a federal civil rights law passed in 1972, prevents any educational institution that receives federal money from discriminating against someone because of their sex; gender-based violence such as sexual assault constitutes this form of discrimination. Under Title IX, survivors of sexual assault can make a simple argument: Allowing any student to commit sexual violence with impunity creates a hostile sexual environment on campus, one that violates their victims' civil rights.

If a student files a Title IX complaint, schools are required to respond promptly. Every school is required to have a Title IX coordinator on staff and adhere to a process of responding to complaints—but that's where the process varies. "Title IX gives you a framework and says, 'Here's what you have to do,'" explains Jackie Sandmeyer, the campus coordinator for the Oregon Sexual Assault Task Force. "But the school figures out how to accomplish it through their institution."

Students at the University of Portland can also undergo a formal student conduct review process where a student like Clara can file a report and ask a board to review another student's supposed conduct violations. The idea, Sandmeyer says, is to give alleged victims options. "It's embarrassing; it's a very intimate thing that's happened to you," she says, emphasizing that advocates often hear victims say, "'I don't want to get the other person in trouble.'"

The morning after Jack went to Clara's room, he continued to text her.

"I want to talk things out," he wrote. "I don't want things to be bad between us if they don't have to be."

"I need time to think," Clara said.

"Do you think I took advantage of you last night?" he responded, then added, "I'm sorry what happened happened. But I went down there because I was thinking about you, I wanted to talk, and at most I thought we might kiss again. You know we wouldn't have had sex if you didn't get a condom—not to mention you took both of our clothes off besides your bra. Don't get me wrong, I really am sorry that it happened. But I am not solely responsible for it."

Sometimes people have asked me, 'What if we're both drunk? Are we sexually assaulting each other?'

Over a month later—after a formal student conduct hearing—the University ruled in Jack's favor. In a letter explaining their decision, administrators detailed that on the night in question, the 150-pound, then-18-year-old Clara was intoxicated, but not incapacitated. Clara had insisted that she was too drunk to recall the assault and that she'd never had sex with her attacker before (Clara says Jack told the school otherwise, claiming they had sex previously, but he would not speak with Broadly for this story to confirm). Still, the University told her the sex was "consistent" with "past physical contact," and that "the hearing panel has concluded that it is not more likely than not that [Jack] engaged in sexual activity without consent."

This is a convoluted way of saying: the University does not have enough evidence to prove whether Jack assaulted Clara.

Clara was appalled and filed an appeal, arguing that her level of intoxication was never investigated or proven. She says she was blacked-out drunk, and that she couldn't give consent in the first place. Her appeal was denied.

"That wasn't what I was expecting by any means," she said a week after receiving the dismissal. She sees it as a message from the University: "'You weren't drunk enough to be sexually assaulted,'" as she puts it. "It's an extra slap in the face."

Since the dismissal, Clara has told her local TV station that her school blames victims of sexual assault. She told a Catholic newspaper that the University failed her. Students wrote editorials admonishing their administrators in the school newspaper about her case. On December 2, she filed a report with the Portland Police.

The University of Portland emailed Broadly a statement about the incident in response to repeated requests for comment from various staff members. "I am confident that the processes and procedures we have followed in Title IX cases at the University have been done with integrity, sensitivity, and respect to all parties involved," wrote Fr. John Donato, the vice president for student affairs. "I know there are people among us who have been hurt, who feel the conduct process here has failed them. We do not want any situation where someone feels that way, and the University is committed to doing its best to ensure that our policies and procedures go beyond the legal requirements."

A science building at University of Portland. Photo via Wikipedia

Clara's case is a particularly pressing one, given the environment on college campuses throughout the country: A 2015 study by researchers at Brown University School of Public Health found that 15.4 percent of college students surveyed had experienced "incapacitated rape" in their first year in college, and a national survey conducted by the Substance Abuse and Mental Health Services Administration found that, of the 60 percent of college students who drank, two out of three of them were binge drinking.

Some cases involving college students, heavy drinking, and sexual assault allegations seem fairly unambiguous; for instance, the Stanford rape case, in which a student was discovered digitally penetrating an unconscious woman he had met earlier that night, ignited international outrage. "This is a case with no ambiguity," wrote a commentator on CNN. "The victim had no memory of the rape. She was unconscious behind a dumpster."

But many feminist activists note that few cases are so black and white, and that we live in a culture where people are quick to disbelieve or discredit sexual assault allegations. "Rape myths allow us to believe that a 'real rape' is one in which a victim is raped by a stranger who jumps out of the bushes with a weapon, and in which she fought back, was beaten and bruised, reported the event to the police, and had medical evidence collected immediately," write Carol Bohmer and Andrea Parrot in Sexual Assault on Campus: The Problem and the Solution. "In a 'real rape,' the victim has never had sex with the assailant before, is preferably a virgin, was not intoxicated, was not wearing seductive clothing, and has a good reputation."

Advocates working to curb sexual assault on college campuses say Clara's account of what happened matches what on-campus assault most often looks like—that the idea of a stranger in the bushes attacking women is more myth than reality. "This is what's happening in colleges and dorm rooms across the country on a daily basis," says Rebecca O'Connor, the vice president of public policy at RAINN. "This case alone demonstrates how difficult it is for policy makers to be proactive without being overly prescriptive. And just how nuanced these cases can be."

Rape myths allow us to believe that a 'real rape' is one in which a victim is raped by a stranger who jumps out of the bushes with a weapon.

Kristina Houck served as the Wellness Education and Prevention Program Coordinator at the University of Portland until 2015, and supervised a $159,000 grant from Department of Justice's Office on Violence Against Women. She says she consulted with national experts to weigh in on the school's definitions of consent and incapacitation—definitions that were "recommended to us by national experts," she adds.

In the school's handbook, consent is defined to be "informed, freely, and voluntarily given mutual agreement understood by both parties and communicated with clearly understandable words or actions, to participate in each form of sexual activity." (The school also details in its handbook that it is formally opposed to sex outside of marriage.) "Consent will not be assumed by silence, impairment due to alcohol or drugs, unconsciousness, sleep, physical impairment, or lack of active resistance," the handbook reads. "A current or previous dating or sexual relationship is not sufficient to constitute consent."

In its formal decision, the University of Portland decided that Clara was intoxicated, but that "evidence of incapacitation was not present," noting that the 18-year-old student "remained in control of her faculties" and "engaged in several points of decision making... walking on her own, talking, texting, inviting [Jack] into her room, removed her clothing, and offering [Jack] a condom to wear."

In her appeal, Clara argued that her state on the night of the assault was, perhaps, the very illustration of the school's definition of incapacitation: "Incapacitation is defined as a state where someone cannot make rational, reasonable, decisions because they lack the capacity to give knowing consent," it reads.

"I never drank to that extent [before that night]," she tells Broadly, adding incredulously, "I wasn't incapacitated because I wasn't physically passed out?"

If your policies say 'only if they are under the influence of alcohol,' every student who has one glass of beer and has sex could say they are sexually assaulted.

Clara argues that when she told Jack not to come to her University of Portland dorm room with her "tonight is not the best idea" text, she was clearly not giving consent. "He knew I was drunk and he came over even though I told him not to," she continues. When she let him into her dorm room, she adds, she wasn't capable of giving consent, evidenced by the fact she had already said no. And the condom? "I kind of just knew what was going to happen," Clara explains. "We were alone... There would be no way I could resist what was going to happen."

People drink and have sex—even state legislators acknowledge that. For many administrators and policy makers, that's one of the most perplexing aspects of the debate around how to nail down a precise definition of incapacitation. Houck says the school was careful to acknowledge that students will have sex and drink: "If your policies say 'only if they are under the influence of alcohol,' every student who has one glass of beer and has sex could say they are sexually assaulted."

And even advocates are puzzled by how propose changes. "Are we over-legislating around people's behavior that's been going on for millions of years?" O'Connor wonders. "Or are we moving the needle?"

But Karasek says she doesn't see Clara's case as a he said/she said case. "He can say, 'She took off my clothes and took out a condom,' but if she's completely annihilated, that's not actually a decision that's informed," she says. "When she wakes up, that can be a very violating experience that's really disempowering. That's what sexual assault is—you had your agency taken away by someone else."

During her tenure, Houck says, the school implemented the Green Dot bystander intervention program, which is meant to teach students to be more proactive about intervening in instances where it seems someone's at risk of harm. And in 2014, the University implemented an online course for all incoming students, called "Think About It," which discusses sexual violence and college hook-up culture.

When asked about this course, Clara says, "I have to be honest, it was like eight hours worth of video. I definitely let it play in the background," and Krista shrugs: "I never did it because I never got the email."

Programs that students take once and forget are "not necessarily targeted at changing a culture," Houck says. "From my perspective, the university is under-investing in prevention education."

In fact, some argue that consent education in higher education is misguided completely. "If we're talking about [consent] on the college level," says Annie Clark, the executive director of End Rape on Campus, "we're already way too late." She says students should be learning about bodily consent when they're young—even in elementary school. Training, she says, must be ongoing in order to emphasize a school's desire to foster a culture of respect. It can't happen just once during freshman year, but throughout the college experience. "Schools have the obligation to do it," echoes Karasek. "And they should do it in person instead of a stupid training you click through online."

Clara recalls when her father, who still works at the University, was becoming trained in the Green Dot program, and remembers hearing about the low number of assaults on campus. (In its Department of Public Safety Crime & Fire Report for 2015, the UP says just three sexual assaults occurred in its dorms.) "I had a bit of a blind trust in the university. I was like, 'It's a good school; they care about their students,'" Clara says. "So this must be great that we don't have a problem."

It's also not a mistake that's like, 'Oh, here is your consequence: Someone is going to sexually assault you.'

Clara had spent her entire life as an enthusiastic Portland Pilot: As an infant, her first home was her parent's dorm room in the brick, two-story men's residence hall where her father worked as an hall director. Her parents were alumni of the Oregon Catholic university, and her grandfather, a great aunt and uncles and her older brother were, too. The day she was born, her arrival into the world was announced over the loudspeaker at the University of Portland men's soccer game as they pummeled the Santa Clara Broncos on their own turf.

When she wasn't on the UP campus as a kid—for soccer camps, basketball games or Mass services—Clara was in its backyard. She was raised in the tree-lined neighborhood of bungalows and ranchers that surrounds the picture-perfect campus, high up on a North Portland bluff overlooking the Willamette River. Clara considered colleges all over the world, but nowhere felt as perfect—as safe—as the campus she already considered home.

This fall, as she waited for a judgment on her case, Clara says she felt suicidal. "I was just kind of dead," she says. On the tiny campus, her home away from home, she would find herself looking over her shoulder, watching for Jack, who attends classes in the same building as her. She thought about transferring to a different school.

That fall night, Clara says she did what many 18-year-olds do at universities around the world: she drank too much. She's quick to call it a mistake. "But it's also not a mistake that's like, 'Oh, here is your consequence: Someone is going to sexually assault you,'" she says.

On a frigid December evening, a sheet of snow melting on the picturesque campus, Clara stood outside of the Commons building, where donors to the University were gathering for an annual holiday dinner, with more than 200 students who were standing in solidarity with rape victims. They were silent, their lips sealed with duct tape to symbolize the survivors throughout the country whose voices had been stifled. Clara's duct tape was purple, and she held her mattress in front of her; on it, the words "Not Incapacitated" were written with duct tape.

What she's describing as sexual assault is the majority of the encounters I've had.

The next day, Clara was reeling. She says before the protest, UP administrators had asked the organizers to stay on side roads and off sidewalks to allow ADA accessibility. The protesters respected their request, but then noticed the donors avoiding the student protest altogether. They were being directed into a different door.

And even more, Clara was confused. After she told her story to local television stations and the University newspaper, one of the witnesses who testified on her behalf about the night of her assault—the anonymous friend who aided Krista in helping her home from the party, and later walked into the room—changed her story.

In a phone interview, the witness—who was paranoid about Broadly identifying her—says she feels bad for Jack. "He really didn't do anything," she adds. She claims Clara wasn't as drunk as she says. And even if she was, Clara's description of her and Jack's sexual encounter didn't sound like what she thinks of as sexual assault. It sounded "just like a normal drunk-ish hook up."

"What she's describing as sexual assault is the majority of the encounters I've had," she says.

Broadly made one final attempt to speak to Jack for this story through the anonymous witness. She passed along a message in response, which she said was from him: "If the reporter decides to publish a one-sided story protecting an individual's false allegations, the publication will suffer for her lies," the message read. "It isn't beneficial to any party for this story to be published. Clara will be in deeper shit, the publication will lose credibility, and I'll be more infamous. It's a lose-lose."

The end of the fall semester brought Clara more heartache. Having her friend change her story is confusing. "I've been truthful," Clara says. She says she if continues to question the events of that night, that she'll "victim-blame myself."

"What if I had just gone to bed like I was supposed to instead of being on my phone? What if I had just never texted him back in the first place? What if I had never opened the door?" she says. "It's hard when I feel shitty not to blame myself."

Despite measures the University put in place to keep Clara and Jack separated, Clara says she practically ran into him as she walked out of one building on a December morning we spoke. He was walking in. "We made eye contact," she says. "He definitely saw me." She says every time she sees him, she feels sick. She remembers being friends. She recalls the text he sent after the night in question—how it felt like he was blaming her. Over holiday break, the campus was empty. Clara was at home. We talked several times over the holiday break, and she appeared to be waffling about returning to school in the winter.

The winter semester resumed in mid-January, and it seems Clara's difficulties defending her case have only compounded. Clara says the anonymous witness who changed her story recently accused Clara of sexual harassment—"she is claiming I set myself up to be caught with my assailant in order to make her jealous"—and Clara had to make an official statement to the school.

Read more: When a Woman Is Raped in Rural Alaska, Does Anyone Care?

On the first day back to campus, Clara and every other student, faculty, and staff member at UP received an email from the president of the school announcing a re-evaluation of Title IX procedures. "I am personally committed, as I know all of you are, to ending sexual violence on our campus," it read. But Clara says she hasn't gotten any answers from the University. She says the administration was handed a petition with 2,300 signatures at the end of the semester, which calls for an overhaul of the student conduct process. The school hasn't responded to it.

Earlier this week, Jack challenged a sexual abuse protection order Clara had filed against him in a county courthouse. The judge ruled against him, meaning Jack will have to keep his distance from her until October 1. "For now I'm just very glad that something has finally gone my way," she says.

It was the first victory she's felt this entire time. After the holiday break, she feared people might have forgotten what happened to her, that her voice would be too quiet, or her story considered too unimportant. "I think the University's hope is that this will all die down," she says. "That's not gonna happen."