فصل 8

Chapter Eight

Case Study: The Fraternity Party

Palo Alto, California. January 18, 2015. Sometime around midnight. Two Swedish graduate students are cycling across the campus of Stanford University on their way to a fraternity party. They see what looks like two people, lying on the ground, just outside a fraternity house where a party is full swing. They slow down so as not to disturb the couple. “We thought that it was their personal moment,” one of the students, Peter Jonsson, would say when he testified in court. As they drew closer, they saw that the man was on top. And beneath the man was a young woman.

Jonsson and his friend, Carl-Fredrik Arndt, got off their bikes and walked closer. Jonsson called out, “Hey, is everything all right?” The man, on top, lifted his body and looked up. Jonsson came closer. The man stood up and began backing away.

Jonsson said, “Hey. What the fuck are you doing? She’s unconscious.” Jonsson said it a second time. “Hey. What the fuck are you doing?” The man began to run. Jonsson and his friend gave chase and tackled him.

The person Jonsson tackled was Brock Turner. He was nineteen, a freshman at Stanford and a member of the university’s swim team. Less than an hour earlier, he had met a young woman at the Kappa Alpha party. Turner would later tell police that they had danced together, talked, gone outside, and lain down on the ground. The woman was a recent college graduate, known thereafter, under the protections of sexual-assault law, as Emily Doe. She had come to the party with a group of friends. Now she lay motionless under a pine tree, next to a dumpster. Her skirt was hiked up around her waist. Her underwear was on the ground next to her. The top of her dress was partially pulled down, revealing one of her breasts. When she came to in the hospital a few hours later that morning, a police officer told her she may have been sexually assaulted. She was confused. She got up, went to the bathroom, and found that her underwear was gone. It had been taken for evidence.

P: What happened after you used the bathroom?

Doe: I felt scratching on my neck and realized it was pine needles. And I thought that I may have fallen from a tree, because I didn’t know why I was there.

P: Was there a mirror in the bathroom?

Doe: Yes.

P: Could you see your hair in the mirror?

Doe: Yes.

P: Can you describe what your hair—how your hair appeared?

Doe: Just disheveled and with little things poking out of it.

P: Do you have any idea how your hair ended up that way?

Doe: No idea.

P: What did you do after you finished using the restroom?

Doe: I went back to the bed. And they gave me a blanket, and I wrapped myself. And I went back to sleep.

2.

Every year, around the world, there are countless encounters just like the one that ended so terribly on the lawn outside the Kappa Alpha fraternity at Stanford University. Two young people who do not know each other well meet and have a conversation. It might be brief. Or go on for hours. They might go home together. Or things may end short of that. But at some point during the evening, things go badly awry. An estimated one in five American female college students say that they have been the victim of sexual assault. A good percentage of those cases follow this pattern.

The challenge in these kinds of cases is reconstructing the encounter. Did both parties consent? Did one party object, and the other party ignore that objection? Or misunderstand it? If the transparency assumption is a problem for police officers making sense of suspects, or judges trying to “read” defendants, it is clearly going to be an issue for teenagers and young adults navigating one of the most complex of human domains.

Take a look at the results of a 2015 Washington Post/Kaiser Family Foundation poll of one thousand college students. The students were asked whether they thought any of the following behaviors “establishes consent for more sexual activity.” 1. Takes off their own clothes

Yes

No

Depends

No opinion

All

47

49

3

1

Men

50

45

3

2

Women

44

52

3

1

1. Gets a condom

Yes

No

Depends

No opinion

All

40

54

4

1

Men

43

51

4

2

Women

38

58

4

1

1. Nods in agreement

Yes

No

Depends

No opinion

All

54

40

3

3

Men

58

36

3

3

Women

51

44

3

3

1. Engages in foreplay such as kissing or touching

Yes

No

Depends

No opinion

All

22

74

3

*

Men

30

66

3

*

Women

15

82

3

*

1. Does not say “No”

Yes

No

Depends

No opinion

All

18

77

3

1

Men

20

75

4

1

Women

16

80

2

1

Consent would be a straightforward matter if all college students agreed that getting a condom meant implicit consent to sex, or if everyone agreed that foreplay, such as kissing or touching, did not constitute an invitation to something more serious. When the rules are clear, each party can easily and accurately infer what the other wants from the way he or she behaves. But what the poll shows is that there are no rules. On every issue there are women who think one way and women who think another; men who think like some women but not others; and a perplexing number of people, of both sexes, who have no opinion at all.

1. For each of the following, please tell me if you think the situation IS sexual assault, IS NOT sexual assault, or is unclear.

Sexual activity when both people have not given clear agreement

Is

Is not

Unclear

No opinion

All

47

6

46

*

Men

42

7

50

1

Women

52

6

42

–

What does it mean that half of all young men and women are “unclear” on whether clear agreement is necessary for sexual activity? Does it mean that they haven’t thought about it before? Does it mean that they would rather proceed on a case-by-case basis? Does it mean they reserve the right to sometimes proceed without explicit consent, and at other times to insist on it? Amanda Knox confounded the legal system because there was a disconnect between the way she acted and the way she felt. But this is transparency failure on steroids. When one college student meets another—even in cases where both have the best of intentions—the task of inferring sexual intent from behavior is essentially a coin flip. As legal scholar Lori Shaw asks, “How can we expect students to respect boundaries when no consensus exists as to what they are?” There is a second, complicating element in many of these encounters, however. When you read through the details of the campus sexual-assault cases that have become so depressingly common, the remarkable fact is how many involve an almost identical scenario. A young woman and a young man meet at a party, then proceed to tragically misunderstand each other’s intentions—and they’re drunk.

3.

D: What did you drink?

Turner: I had approximately five Rolling Rock beers.

Brock Turner began drinking well before he went to the Kappa Alpha party. He had been at his friend Peter’s apartment earlier in the evening.

D: Other than the five Rolling Rock beers that you’ve mentioned, did you drink any other alcohol in Peter’s room?

Turner: Yes. I had some Fireball Whiskey.

D: And how was that consumed?…

Turner: It was just out of the bottle.

When Turner got to the party, he kept drinking. In California the legal intoxication limit for drivers is a blood-alcohol concentration of .08; anything above that and you’re considered drunk. By the end of the night Turner’s blood-alcohol level was twice that.

Emily Doe arrived at the party in a group—with her sister and her friends Colleen and Trea. Earlier that evening, Trea had consumed an entire bottle of champagne, among other things. There they were joined by their friend Julia, who had also been drinking.

P: Did you have anything to drink at dinner?

Julia: Yes.

P: What did you drink?

Julia: A full bottle of wine.

And then:

P: What did you do after dinner?

Julia: After dinner [I] Ubered to a place called Griffin Suite.…

P: And what was going on there at Griffin Suite?

Julia: A pregame.

P: What’s that?

Julia: Oh, sorry. It’s a jargon. It’s a pre-party that involves drinking.

After pregaming, Julia heads to the Kappa Alpha party, where she discovers an unopened bottle of vodka in the basement.

Julia: I opened it and we poured it into cups and took shots.

That leaves Emily Doe.

P: And so you started drinking with the shot of whiskey, and then how many—how many drinks did you have before you left your house?

Doe: Four.

P: And were they the same type of drink—a shot of whiskey—that you had the first time?

Doe: I had four shots of whiskey and one glass of champagne.

P: OK. So do you know approximately what time frame this was that you had the four shots of whiskey and one glass of champagne?

Doe: Probably between 10:00 and 10:45.

Then she and her friends go on to the party.

P: OK. And so after you guys kind of were goofing around, being the welcoming committee, what did you guys do?

Doe: Julia discovered a handle of vodka.

P: OK. And what is your description of a “handle of vodka”?

Doe: Probably, like, this big, Costco size…

P: And what happened when she presented the vodka?

Doe: I did a free pour into a red Solo cup.

P: OK. Were you measuring in any way how much vodka was in your cup?

Doe: I thought I was, but I was unsuccessfully measuring. I poured right below the second marking on the cup, which I thought was going to be two to three shots. It turned out to be maybe three to four shots, because that marking was five ounces.

P: And you’re talking about a red Solo cup.

Doe: Yes.

P: Kind of something that you typically see at parties?

Doe: Yes…

P: OK. Now, when you were—after you poured the vodka, what did you do?

Doe: I drank it.

P: How did you drink it?

Doe: Just—for all.

P: Like, all at once?

Doe: Pretty much all at once. So I was already feeling drunk, because I was able to do that.

And then:

P: How—describe for us your level of intoxication at this point.

Doe: Umm, pretty much empty-minded. I become kind of just a dud, and I’m vacant, not articulating much. Just standing there.1 P: Do you have any idea what time this is in the night?

Doe: Maybe around midnight.

It was at that point that Brock Turner approached Emily Doe. He says she was dancing alone. He says he approached her and told her he liked the way she danced. He says she laughed. He says they chatted. He says he asked her to dance. He says she said yes. He says they danced for ten minutes. He says they started kissing.

D: OK. Did she appear to be responsive kissing you back?

Turner: Yes.

D: Did you have any further conversation with her that you remember?

Turner: Yes. I asked her if she wanted to go back to my dorm.

D: OK. And did she respond?

Turner: Yes.

D: What did she say?

Turner: She said, “Sure.”

D: Approximately, this would have been after 12:30 then, right?

Turner: Yes.

D: Did you ever learn her name that night?

Turner: Yes. I asked her her name while we were dancing, but I didn’t remember it.

He says he put his arm around her and the two of them left the party. As they walked across the back lawn, he says the two of them slipped.

Turner: She just lost her footing and kind of fell down. And she grabbed onto me to try and prevent her fall and that caused me to fall as well… D: What happened then?

Turner: We laughed about it and I asked her if she was OK.

D: Did she respond?

Turner: Yeah. She said she thought so.

D: What happened then?

Turner: We started kissing.

Normally, in a sexual-assault case, the prosecution would present witnesses to raise questions about the defendant’s account. But that didn’t happen in People v. Brock Turner. By that point, Trea had become so drunk that Emily’s sister and her friend Colleen had taken her back to Julia’s dorm room. Turner’s friend Peter never made it to the party at all: he was too drunk, and had to be taken back to his dorm by two of Turner’s other friends. Presumably there might have been other people at the party who could corroborate or refute Turner’s story. But by this point it was after midnight, the lights had been lowered, and people were dancing on the tables.

So we have only Turner’s account:

D: What happened then?

Turner: We kissed for a little bit after that, and then I asked her if she wanted me to finger her.

D: Did she reply to you?

Turner: Yes.

D: What did she say?

Turner: She said yeah.…

D: After you obtained her concurrence or permission to finger her, and you did finger her, what happened then?

Turner: I fingered her for a minute. And I thought she had an orgasm. And then I—well, during that time, I asked her if she liked it, and she said, “Uh huh.” And then:

D: And then after that, what did you do?

Turner: I started kissing with her again and then we started dry humping each other.

Under California law, someone is incapable of giving consent to sexual activity if they are either unconscious or so intoxicated that they are “prevented from resisting.” Here is legal scholar Lori Shaw: It is not enough that the victim was intoxicated to some degree, or that the intoxication reduced the victim’s sexual inhibitions.…Instead, the level of intoxication and the resulting mental impairment must have been so great that the victim could no longer exercise reasonable judgment concerning that issue. As one California prosecutor explained, “the intoxicated victim must be so ‘out of it’ that she does not understand what she is doing or what is going on around her. It is not a situation where the victim just ‘had too much to drink.’” So was Doe a willing participant at the time of the sexual activity—and passed out afterward? Or was she already incapable of consent at the time Turner put his finger inside her? People v. Brock Turner is a case about alcohol. The entire case turned on the degree of Emily Doe’s drunkenness.

In the end, the jury ruled against Turner. His version of events was simply unconvincing. If—as Turner suggests—they had a warm, consensual encounter, why did he run the moment he was challenged by the two grad students? Why was he “dry humping” her after she had passed out? Just after midnight, Doe left a voice mail for her boyfriend. The tape of that conversation was played for the jury. She’s barely coherent. If the legal standard is “so ‘out of it’ that she does not understand what she is doing,” then she sounded pretty close to that.

During the trial’s closing arguments, the prosecutor showed the jury a picture of Doe, taken as she lay on the ground. Her clothes are half off. Her hair is disheveled. She’s lying on a bed of pine needles. A dumpster is in the background. “No self-respecting woman who knows what’s going on wants to get penetrated right there,” the prosecutor said. “This photo alone can tell you that he took advantage of somebody who didn’t know what was going on.” Turner was convicted of three felony counts associated with the illegal use of his finger: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. He was sentenced to six months in prison and must register as a sex offender for the rest of his life.

The who of the Brock Turner case was never in doubt. The what was determined by the jury. But that still leaves the why. How did an apparently harmless encounter on a dance floor end in a crime? We know that our mistaken belief that people are transparent leads to all manner of problems between strangers. It leads us to confuse the innocent with the guilty and the guilty with the innocent. Under the best of circumstances, lack of transparency makes the encounter between a man and a woman at a party a problematic event. So what happens when alcohol is added to the mix?

4.

Dwight Heath was a graduate student in anthropology at Yale University in the mid-1950s when he decided to do the fieldwork for his dissertation in Bolivia. He and his wife, Anna Heath, flew to Lima with their baby boy, then waited five hours while mechanics put boosters on the plane’s engines. “These were planes that the U.S. had dumped after World War II,” Heath recalls. “They weren’t supposed to go above 10,000 feet. But La Paz, where we were headed, was at 12,000 feet.” As they flew into the Andes, Anna Heath says, they looked down and saw the remnants of “all the planes where the boosters didn’t work.” From La Paz they traveled 500 miles into the interior of eastern Bolivia, to a small frontier town called Montero. It was the part of Bolivia where the Amazon Basin meets the Chaco region—vast stretches of jungle and lush prairie. The area was inhabited by the Camba, a mestizo people descended from the indigenous Indian populations and Spanish settlers. The Camba spoke a language that was a mixture of the local Indian languages and seventeenth-century Andalusian Spanish. “It was an empty spot on the map,” Heath says. “There was a railroad coming. There was a highway coming. There was a national government…coming.” They lived in a tiny house just outside of town. “There was no pavement, no sidewalks,” Anna Heath recalls.

If there was meat in town, they’d throw out the hide in front, so you’d know where it was, and you would bring banana leaves in your hand, so it was your dish. There were adobe houses with stucco and tile roofs, and the town plaza, with three palm trees. You heard the rumble of oxcarts. The padres had a jeep. Some of the women would serve a big pot of rice and some sauce. That was the restaurant. The guy who did the coffee was German. The year we came to Bolivia, a total of eighty-five foreigners came into the country. It wasn’t exactly a hot spot.

In Montero, the Heaths engaged in old-fashioned ethnography—“vacuuming up everything,” Dwight says, “learning everything.” They convinced the Camba that they weren’t missionaries by openly smoking cigarettes. They took thousands of photographs. They walked around the town and talked to whomever they could, then Dwight went home and spent the night typing up his notes. After a year and a half, the Heaths packed up their photographs and notes and returned to New Haven. There, Dwight Heath sat down to write his dissertation—only to discover that he had nearly missed what was perhaps the most fascinating fact about the community he had been studying. “Do you realize,” he told his wife as he looked over his notes, “that every weekend we were in Bolivia, we went out drinking?” Every Saturday night the entire time they were there, the Heaths were invited to drinking parties. The host would buy the first bottle and issue the invitations. A dozen or so people would show up, and the party would proceed—often until everyone went back to work on Monday morning. The composition of the group was informal: sometimes people passing by would be invited. But the structure of the party was heavily ritualized. The group sat in a circle. Someone might play the drums or a guitar. A bottle of rum from one of the sugar refineries in the area and a small drinking glass were placed on a table. The host stood, filled the glass with rum, then walked toward someone in the circle. He stood before the “toastee,” nodded, and raised the glass. The toastee smiled and nodded in return. The host then drank half the glass and handed it to the toastee, who finished it. The toastee eventually stood, refilled the glass, and repeated the ritual with someone else in the circle. When people got too tired or too drunk, they curled up on the ground and passed out, rejoining the party when they awoke.

“The alcohol they drank was awful,” Anna recalled. “Literally, your eyes poured tears. The first time I had it, I thought, I wonder what will happen if I just vomit in the middle of the floor. Not even the Camba said they liked it. They say it tastes bad. It burns. The next day they are sweating this stuff. You can smell it.” But the Heaths gamely persevered.

“The anthropology graduate student in the 1950s felt that he had to adapt,” Dwight said. “You don’t want to offend anyone, you don’t want to decline anything. I gritted my teeth and accepted those drinks.” “We didn’t get drunk that much,” Anna went on, “because we didn’t get toasted as much as the other folks around. We were strangers. But one night there was this really big party—sixty to eighty people. They’d drink. Then pass out. Then wake up and party for a while. And I found, in their drinking patterns, that I could turn my drink over to Dwight. The husband is obliged to drink for his wife. And Dwight is holding a Coleman lantern with his arm wrapped around it, and I said, ‘Dwight, you are burning your arm.’” She mimed her husband peeling his forearm off the hot surface of the lantern. “And he said—very deliberately—’So I am.’” When the Heaths came back to New Haven, they had a bottle of the Camba’s rum analyzed and learned that it was 180 proof. It was laboratory alcohol—the concentration that scientists use to preserve tissue. No one drinks laboratory alcohol. This was the first of the astonishing findings of the Heaths’ research—and, predictably, no one believed it at first.

“One of the world’s leading physiologists of alcohol was at the Yale center,” Heath recalled. “His name was Leon Greenberg. He said to me, ‘Hey, you spin a good yarn. But you couldn’t really have drunk that stuff.’ And he needled me just enough that he knew he would get a response. So I said, ‘You want me to drink it? I have a bottle.’ So one Saturday I drank some under controlled conditions. He was taking blood samples every twenty minutes, and, sure enough, I did drink it, the way I said I’d drunk it.” Greenberg had an ambulance ready to take Heath home. But Heath decided to walk. Anna was waiting up for him in the third-floor walkup they rented in an old fraternity house. “I was hanging out the window waiting for him, and there’s the ambulance driving along the street, very slowly, and next to it is Dwight. He waves, and he looks fine. Then he walks up the three flights of stairs and says, ‘Ahh, I’m drunk,’ and falls flat on his face. He was out for three hours.” Here we have a community of people, in a poor and undeveloped part of the world, who hold drinking parties with 180-proof alcohol every weekend, from Saturday night until Monday morning. The Camba must have paid dearly for their excesses, right? Wrong.

“There was no social pathology—none,” Dwight Heath said. “No arguments, no disputes, no sexual aggression, no verbal aggression. There was pleasant conversation or silence.” He went on: “The drinking didn’t interfere with work.…It didn’t bring in the police. And there was no alcoholism either.” Heath wrote up his findings in a now-famous article for the Quarterly Journal of Studies on Alcohol. In the years that followed, countless other anthropologists chimed in to report the same thing. Alcohol sometimes led people to raise their voices and fight and say things they would otherwise regret. But a lot of other times, it didn’t. The Aztec called pulque—the traditional alcoholic beverage of central Mexico—“four hundred rabbits” because of the seemingly infinite variety of behaviors it could create. Anthropologist Mac Marshall traveled to the South Pacific island of Truk and found that, for young men there, drunkenness created aggression and mayhem. But when the islanders reached their mid-thirties, it had the opposite effect.

In Oaxaca, Mexico, the Mixe Indians were known to engage in wild fistfights when drunk. But when anthropologist Ralph Beals started watching the fights, they didn’t seem out of control at all. They seemed as though they all followed the same script: Although I probably saw several hundred fights, I saw no weapon used, although nearly all men carried machetes and many carried rifles. Most fights start with a drunken quarrel. When the pitch of voices reaches a certain point, everyone expects a fight. The men hold out their weapons to the onlookers, and then begin to fight with their fists, swinging wildly until one falls down, [at which point] the victor helps his opponent to his feet and usually they embrace each other.

None of this makes sense. Alcohol is a powerful drug. It disinhibits. It breaks down the set of constraints that hold our behavior in check. That’s why it doesn’t seem surprising that drunkenness is so overwhelmingly linked with violence, car accidents, and sexual assault.

But if the Camba’s drinking bouts had so few social side effects, and if the Mixe Indians of Mexico seem to be following a script even during their drunken brawls, then our perception of alcohol as a disinhibiting agent can’t be right. It must be something else. Dwight and Anna Heath’s experience in Bolivia set in motion a complete rethinking of our understanding of intoxication. Many of those who study alcohol no longer consider it an agent of disinhibition. They think of it as an agent of myopia.

5.

The myopia theory was first suggested by psychologists Claude Steele and Robert Josephs, and what they meant by myopia is that alcohol’s principal effect is to narrow our emotional and mental fields of vision. It creates, in their words, “a state of shortsightedness in which superficially understood, immediate aspects of experience have a disproportionate influence on behavior and emotion.” Alcohol makes the thing in the foreground even more salient and the thing in the background less significant. It makes short-term considerations loom large, and more cognitively demanding, longer-term considerations fade away.

Here’s an example. Lots of people drink when they are feeling down because they think it will chase their troubles away. That’s inhibition-thinking: alcohol will unlock my good mood. But that’s plainly not what happens. Sometimes alcohol cheers us up. But at other times, when an anxious person drinks they just get more anxious. Myopia theory has an answer to that puzzle: it depends on what the anxious, drunk person is doing. If he’s at a football game surrounded by rabid fans, the excitement and drama going on around him will temporarily crowd out his pressing worldly concerns. The game is front and center. His worries are not. But if the same man is in a quiet corner of a bar, drinking alone, he will get more depressed. Now there’s nothing to distract him. Drinking puts you at the mercy of your environment. It crowds out everything except the most immediate experiences.2 Here’s another example. One of the central observations of myopia theory is that drunkenness has its greatest effect in situations of “high conflict”—where there are two sets of considerations, one near and one far, that are in opposition. So, suppose that you are a successful professional comedian. The world thinks you are very funny. You think you are very funny. If you get drunk, you don’t think of yourself as even funnier. There’s no conflict over your hilariousness that alcohol can resolve. But suppose you think you are very funny and the world generally doesn’t. In fact, whenever you try to entertain a group with a funny story, a friend pulls you aside the next morning and gently discourages you from ever doing it again. Under normal circumstances, the thought of that awkward conversation with your friend keeps you in check. But when you’re drunk? The alcohol makes the conflict go away. You no longer think about the future corrective feedback regarding your bad jokes. Now it is possible for you to believe that you are actually funny. When you are drunk, your understanding of your true self changes.

This is the crucial implication of drunkenness as myopia. The old disinhibition idea implied that what was revealed when someone got drunk was a kind of stripped-down, distilled version of their sober self—without any of the muddying effects of social nicety and propriety. You got the real you. As the ancient saying goes, In vino veritas: “In wine there is truth.” But that’s backward. The kinds of conflicts that normally keep our impulses in check are a crucial part of how we form our character. All of us construct our personality by managing the conflict between immediate, near considerations and more complicated, longer-term considerations. That is what it means to be ethical or productive or responsible. The good parent is someone who is willing to temper their own immediate selfish needs (to be left alone, to be allowed to sleep) with longer-term goals (to raise a good child). When alcohol peels away those longer-term constraints on our behavior, it obliterates our true self.

So who were the Camba, in reality? Heath says their society was marked by a singular lack of “communal expression.” They were itinerant farmworkers. Kinship ties were weak. Their daily labor tended to be solitary, the hours long. There were few neighborhood or civic groups. The daily demands of their lives made socializing difficult. So on the weekends, they used the transformative power of alcohol to create the “communal expression” so sorely lacking from Monday to Friday. They used the myopia of alcohol to temporarily create a different world for themselves. They gave themselves strict rules: one bottle at a time, an organized series of toasts, all seated around the circle, only on the weekends, never alone. They drank only within a structure, and the structure of those drinking circles in the Bolivian interior was a world of soft music and quiet conversation: order, friendship, predictability, and ritual. This was a new Camba society, manufactured with the assistance of one of the most powerful drugs on earth.

Alcohol isn’t an agent of revelation. It is an agent of transformation.

6.

In 2006, England had its own version of the Brock Turner trial, a high-profile case involving a twenty-five-year-old software designer named Benjamin Bree and a woman identified by the court only as “M.” It is a textbook example of the complications created by alcohol myopia.

The two met for the first time at Bree’s brother’s apartment and went out that same night. Over the course of the evening, M had two pints of cider and between four and six drinks of vodka mixed with Red Bull. Bree, who had been drinking earlier in the day, matched her round for round. Footage from closed-circuit cameras showed the two of them walking back to her apartment, arm in arm, around one in the morning. They had sex. Bree thought it was consensual. M said it wasn’t. He was convicted of rape and sentenced to five years in prison—only to have the verdict thrown out on appeal. If you have read any other accounts of these kinds of cases, the details will be depressingly familiar: pain, regret, misunderstanding, and anger.

Here is Bree, describing his side of the story.

I was hoping to avoid sleeping on the floor and thought that maybe I could share her bed, which in hindsight seems such a stupid thing to do.

I wasn’t looking for sex, just a mattress and some human company. She woke up and I lay down next to her and eventually we started hugging, and then kissing.

It was a bit unexpected, but nice. We were indulging in foreplay for about thirty minutes and it sounded like she was enjoying it.

And then, from the court’s decision:

He insisted that M appeared to welcome his advances, which progressed from stroking of a comforting nature to sexual touching. She said and did nothing to stop him. He told the jury that one needed to be sure about consent which is why he stroked her for so long. The complainant could not gainsay that this foreplay lasted for some time. Eventually he put the top of his fingers inside the waistband of her pyjama trousers, which would have given her an opportunity to discourage him. She did not. She seemed particularly responsive when he put his hand inside her pyjama trousers. After sexual touching, he motioned for her to remove her pyjama trousers. He pulled them down slightly, then she removed them altogether.

Bree thought he could infer M’s inner state from her behavior. He assumed she was transparent. She wasn’t. Here, from the court’s filings, is how M was actually feeling: She had no idea how long intercourse lasted. When it ended she was still facing the wall. She did not know whether the appellant had in fact used a condom or not, nor whether he ejaculated or not. Afterwards he asked if she wanted him to stay. She said “no.” In her mind she thought “get out of my room,” although she did not actually say it. She didn’t know “what to say or think, whether he would turn and beat me. I remember him leaving, the door shutting.” She got up and locked the door and then returned to lie on her bed curled up in a ball, but she could not remember for how long.

At 5 a.m., M called her best friend, in tears. Bree, meanwhile, was still so oblivious to her inner state that he knocked on M’s door a few hours later and asked M if she wanted to go and get fish and chips for lunch.

After several months in prison, Bree was freed when an appeals court concluded that it was impossible to figure out what the two of them did or did not consent to in M’s bedroom that night. “Both were adults,” the judge wrote: Neither acted unlawfully in drinking to excess. They were both free to choose how much to drink, and with whom. Both were free, if they wished, to have intercourse with each other. There is nothing abnormal, surprising, or even unusual about men and women having consensual intercourse when one, or the other, or both have voluntarily consumed a great deal of alcohol.…The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures.3 You may or may not agree with that final ruling. But it is hard to disagree with the judge’s fundamental complaint—that adding alcohol to the process of understanding another’s intentions makes a hard problem downright impossible. Alcohol is a drug that reshapes the drinker according to the contours of his immediate environment. In the case of the Camba, that reshaping of personality and behavior was benign. Their immediate environment was carefully and deliberately constructed: they wanted to use alcohol to create a temporary—and, in their minds, better—version of themselves. But when young people today drink to excess, they aren’t doing so in a ritualized, predictable environment carefully constructed to create a better version of themselves. They’re doing so in the hypersexualized chaos of fraternity parties and bars.

Defense: What was your observation that you’ve made of the kind of atmosphere that existed at parties at Kappa Alpha before?

Turner: A lot of grinding and—

D: What do you mean by grinding?

Turner: Girls dancing…facing away from a guy, and the guy behind them dancing with them.

D: All right. So you’re describing a position where—are you both facing in the same direction?

Turner: Yes.

D: But the boy’s behind the girl?

Turner: Yes.

D: And how close are their bodies during this grinding dancing?

Turner: They’re touching.

D: Is that common at these parties that you noticed?

Turner: Yes.

D: Did people dance on tables? Was that a common thing, too?

Turner: Yes.

Consent is something that two parties negotiate, on the assumption that each side in a negotiation is who they say they are. But how can you determine consent when, at the moment of negotiation, both parties are so far from their true selves?

7.

What happens to us when we get drunk is a function of the particular path the alcohol takes as it seeps through our brain tissue. The effects begin in the frontal lobes, the part of our brain behind our forehead that governs attention, motivation, planning, and learning. The first drink “dampens” activity in that region. It makes us a little dumber, less capable of handling competing complicated considerations. It hits the reward centers of the brain, the areas that govern euphoria, and gives them a little jolt. It finds its way into the amygdala. The amygdala’s job is to tell us how to react to the world around us. Are we being threatened? Should we be afraid? Alcohol turns the amygdala down a notch. The combination of those three effects is where myopia comes from. We don’t have the brainpower to handle more complex, long-term considerations. We’re distracted by the unexpected pleasure of the alcohol. Our neurological burglar alarm is turned off. We become altered versions of ourselves, beholden to the moment. Alcohol also finds its way to your cerebellum, at the very back of the brain, which is involved in balance and coordination. That’s why you start to stumble and stagger when intoxicated. These are the predictable effects of getting drunk.

But under certain very particular circumstances—especially if you drink a lot of alcohol very quickly—something else happens. Alcohol hits the hippocampus—small, sausage-like regions on each side of the brain that are responsible for forming memories about our lives. At a blood-alcohol level of roughly 0.08—the legal level of intoxication—the hippocampus starts to struggle. When you wake up the morning after a cocktail party and remember meeting someone but cannot for the life of you remember their name or the story they told you, that’s because the two shots of whiskey you drank in quick succession reached your hippocampus. Drink a little more and the gaps get larger—to the point where maybe you remember pieces of the evening but other details can be summoned only with the greatest difficulty.

Aaron White, at the National Institutes of Health outside Washington, DC, is one of the world’s leading experts on blackouts, and he says that there is no particular logic to which bits get remembered and which don’t. “Emotional salience doesn’t seem to have an impact on the likelihood that your hippocampus records something,” he says. “What that means is you might, as a female, go to a party and you might remember having a drink downstairs, but you don’t remember getting raped. But then you do remember getting in the taxi.” At the next level—roughly around a blood-alcohol level of 0.15—the hippocampus simply shuts down entirely.

“In the true, pure blackout,” White said, “there’s just nothing. Nothing to recall.” In one of the earliest studies of blackouts, an alcohol researcher named Donald Goodwin gathered ten men from an unemployment line in St. Louis, gave them each the better part of a bottle of bourbon over a four-hour period, then had them perform a series of memory tests. Goodwin writes: One such event was to show the person a frying pan with a lid on it, suggest that he might be hungry, take off the lid, and there in the pan are three dead mice. It can be said with confidence that sober individuals will remember this experience, probably for the rest of their lives.

But the bourbon drinkers? Nothing. Not thirty minutes later, and not the next morning. The three dead mice never got recorded at all.

In a blackout state—in that window of extreme drunkenness before their hippocampus comes back online—drunks are like ciphers, moving through the world without retaining anything.

Goodwin once began an essay on blackouts with the following story:

A thirty-nine-year-old salesman awoke in a strange hotel room. He had a mild hangover but otherwise felt normal. His clothes were hanging in the closet; he was clean-shaven. He dressed and went down to the lobby. He learned from the clerk that he was in Las Vegas and that he had checked in two days previously. It had been obvious that he had been drinking, the clerk said, but he had not seemed very drunk. The date was Saturday the 14th. His last recollection was of sitting in a St. Louis bar on Monday the 9th. He had been drinking all day and was drunk, but could remember everything perfectly until about 3 p.m., when “like a curtain dropping,” his memory went blank. It remained blank for approximately five days. Three years later, it was still blank. He was so frightened by the experience that he abstained from alcohol for two years.

The salesman had left the bar in St. Louis, gone to the airport, bought a plane ticket, flown to Las Vegas, found a hotel, checked in, hung up his suit, shaved, and apparently functioned perfectly well in the world, all while in blackout mode. That’s the way blackouts work. At or around the 0.15 mark, the hippocampus shuts down and memories stop forming, but it is entirely possible that the frontal lobes, cerebellum, and amygdala of that same drinker—at the same time—can continue to function more or less normally.

“You can do anything in a blackout that you can do when you’re drunk,” White said.

You’re just not going to remember it. That could be ordering stuff on Amazon. People tell me this all the time.…People can do very complicated things. Buy tickets, travel, all kinds of things, and not remember.

It follows that it’s really hard to tell, just by looking at someone, whether they’ve blacked out. It’s like trying to figure out if someone has a headache exclusively from the expression on their face. “I might look a little drunk, I might look wasted, but I can talk to you,” White said.

I can have a conversation with you. I can go get us drinks. I can do things that require short-term storage of information. I can talk to you about our growing up together.…Even wives of hardcore alcoholics say they can’t really tell when their spouse is or is not in a blackout.4 When Goodwin was doing his pioneering work in the 1960s, he assumed that only alcoholics got blackout drunk. Blackouts were rare. Scientists wrote about them in medical journals the way they would about a previously unknown disease. Take a look at the results of one of the first comprehensive surveys of college drinking habits. It was conducted in the late 1940s and early 1950s, at twenty-seven colleges around the United States. Students were asked how much they drank, on average, “at a sitting.” (For the purposes of the question, drinking amounts were divided into three groups. “Smaller” meant no more than two glasses of wine, two bottles of beer, or two mixed drinks. “Medium” was from three to five beers or glasses of wine, or three to four mixed drinks. And “Larger” was anything above that.) Beer

Male (%)

Female (%)

Smaller

46

73

Medium

45

26

Larger

9

1

Wine

Male (%)

Female (%)

Smaller

79

89

Medium

17

11

Larger

4

0

Spirits

Male (%)

Female (%)

Smaller

40

60

Medium

31

33

Larger

29

7

At these consumption levels, very few people are drinking enough to reach blackout.

Today, two things about that chart have changed. First, the heavy drinkers of today drink far more than the heavy drinkers of fifty years ago. “When you talk to students [today] about four drinks or five drinks, they just sort of go, ‘Pft, that’s just getting started,’” reports alcohol researcher Kim Fromme. She says the heavy binge-drinking category now routinely includes people who have had twenty drinks in a sitting. Blackouts, once rare, have become common. Aaron White recently surveyed more than 700 students at Duke University. Of the drinkers in the group, over half had suffered a blackout at some point in their lives, 40 percent had had a blackout in the previous year, and almost one in ten had had a blackout in the previous two weeks.5 Second, the consumption gap between men and women, so pronounced a generation ago, has narrowed considerably—particularly among white women. (The same trends aren’t nearly as marked among Asians, Hispanics, or African Americans.) “I think it’s an empowerment issue,” Fromme argues:

I do a lot of consulting work in the military, and it’s easier for me to see it there because in the military the women are really put to the same standards as men in terms of their physical boot camps and training and all of that. They have worked very hard to try to say, “We’re like the men and therefore we can drink like the men.” For physiological reasons, this trend has put women at greatly increased risk for blackouts. If an American male of average weight has eight drinks over four hours—which would make him a moderate drinker at a typical frat party—he would end up with a blood-alcohol reading of 0.107. That’s too drunk to drive, but well below the 0.15 level typically associated with blackouts. If a woman of average weight has eight drinks over four hours, by contrast, she’s at a blood-alcohol level of 0.173. She’s blacked out.6 It gets worse. Women are also increasingly drinking wine and spirits, which raise blood-alcohol levels much faster than beer. “Women are also more likely to skip meals when they drink than men,” White says.

Having a meal in your stomach when you drink reduces your peak BAC [blood-alcohol concentration] by about a third. In other words, if you drink on an empty stomach you’re going to reach a much higher BAC and you’re going to do it much more quickly, and if you’re drinking spirits and wine while you’re drinking on an empty stomach, again higher BAC much more quickly. And if you’re a woman, less body water [yields] higher BAC much more quickly.

And what is the consequence of being blacked out? It means that women are put in a position of vulnerability. Our memory, in any interaction with a stranger, is our first line of defense. We talk to someone at a party for half an hour and weigh what we learned. We use our memory to make sense of who the other person is. We collect things they’ve told us, and done, and those shape our response. That is not an error-free exercise in the best of times. But it is a necessary exercise, particularly if the issue at hand is whether you are going to go home with the person. Yet if you can’t remember anything you’ve just learned, you are necessarily not making the same-quality decision you would have if your hippocampus were still working. You have ceded control of the situation.

“Let’s be totally clear: Perpetrators are the ones responsible for committing their crimes, and they should be brought to justice,” critic Emily Yoffe writes in Slate: But we are failing to let women know that when they render themselves defenseless, terrible things can be done to them. Young women are getting a distorted message that their right to match men drink for drink is a feminist issue. The real feminist message should be that when you lose the ability to be responsible for yourself, you drastically increase the chances that you will attract the kinds of people who, shall we say, don’t have your best interest at heart. That’s not blaming the victim; that’s trying to prevent more victims.

And what of the stranger talking to you? He may not know you are blacked out. Maybe he leans in and tries to touch you, and you stiffen. Then ten minutes later he circles back, a little more artfully. Normally you would stiffen again, because you would recognize the stranger’s pattern. But you don’t this second time, because you don’t remember the first time. And the fact that you don’t stiffen in quite the same way makes the stranger think, under the assumption of transparency, that you are welcoming his advances. Normally he would be cautious in acting on that assumption: friendliness is not the same thing as an invitation to intimacy. But he’s drunk too. He’s in the grip of alcohol myopia, and the kind of longer-term considerations that might otherwise constrain his behavior (what happens to me tomorrow if I have misread this situation?) have faded from view.

Does alcohol turn every man into a monster? Of course not. Myopia resolves high conflict: it removes the higher-order constraints on our behavior. The reserved man, normally too shy to profess his feelings, might blurt out some intimacy. The unfunny man, normally aware that the world does not find his jokes funny, might start playing comedian. Those are harmless. But what of the sexually aggressive teenager—whose impulses are normally kept in check by an understanding of how inappropriate those behaviors are? A version of the same admonition that Emily Yoffe gave to women can also be given to men: But we are failing to let men know that when they render themselves myopic, they can do terrible things. Young men are getting a distorted message that drinking to excess is a harmless social exercise. The real message should be that when you lose the ability to be responsible for yourself, you drastically increase the chances that you will commit a sexual crime. Acknowledging the role of alcohol is not excusing the behavior of perpetrators. It’s trying to prevent more young men from becoming perpetrators.

It is striking how underappreciated the power of myopia is. In the Washington Post/Kaiser Family Foundation study, students were asked to list the measures they thought would be most effective in reducing sexual assault. At the top of that list they put harsher punishment for aggressors, self-defense training for victims, and teaching men to respect women more. How many thought it would be “very effective” if they drank less? Thirty-three percent. How many thought stronger restrictions on alcohol on campus would be very effective? Fifteen percent.7 These are contradictory positions. Students think it is a good idea to be trained in self-defense, and not such a good idea to clamp down on drinking. But what good is knowing the techniques of self-defense if you’re blind drunk? Students think it’s a really good idea if men respect women more. But the issue is not how men behave around women when they are sober. It is how they behave around women when they are drunk, and have been transformed by alcohol into a person who makes sense of the world around them very differently. Respect for others requires a complicated calculation in which one party agrees to moderate their own desires, to consider the longer-term consequences of their own behavior, to think about something other than the thing right in front of them. And that is exactly what the myopia that comes with drunkenness makes it so hard to do.

The lesson of myopia is really very simple. If you want people to be themselves in a social encounter with a stranger—to represent their own desires honestly and clearly—they cannot be blind drunk. And if they are blind drunk, and therefore at the mercy of their environment, the worst possible place to be is an environment where men and women are grinding on the dance floor and jumping on the tables. A Kappa Alpha fraternity party is not a Camban drinking circle.

“Persons learn about drunkenness what their societies import to them, and comporting themselves in consonance with these understandings, they become living confirmations of their society’s teachings,” Craig MacAndrew and Robert Edgerton conclude in their classic 1969 work Drunken Comportment. “Since societies, like individuals, get the sorts of drunken comportment that they allow, they deserve what they get.” 8.

So: At the Kappa Alpha party at Stanford, sometime just after midnight, Emily Doe suffered a blackout. That’s what happens when you begin your evening with a light dinner and four quick shots of whiskey and a glass of champagne—followed by three or four shots of vodka in a red Solo cup.

P: And at some point, do you recall your sister leaving the party?

Doe: I do not.

P: What is your next memory after going to the bathroom outside, coming back to the patio, having the beers, and seeing some of the guys shotgun some beers?

Doe: I woke up in the hospital.

Emily Doe has no memory of meeting Brock Turner, no memory of whether she did or didn’t dance with him, no memory of whether she did or didn’t kiss him, did or didn’t agree to go back to his dorm, and no memory of whether she was a willing or unwilling participant in their sexual activity. Did she resist when they left the party? Did she struggle? Did she flirt with him? Did she just stumble, blindly, after him? We’ll never know. After the fact, when she was sober, Doe was adamant that she would never have willingly left the party with another man. She was in a committed relationship. But it wasn’t the real Emily Doe who met Brock Turner. It was drunk and blacked-out Emily Doe, and our drunken, blacked-out selves are not the same as our sober selves.

Brock Turner claimed to remember what happened that night, and that at every step of the way Emily Doe was a willing participant. But that is the story he told at his trial, after months of prepping and strategizing with his lawyers. On the night of his arrest, as he sat in shock in the interview room of the local police station, he had none of that certainty about Emily Doe.

Q: Were you guys hooking up there before or—before you even moved over?

Turner: I think so. But I’m not sure when we started kissing, honestly.

Then the police officer asks him why he ran when the two graduate students discovered him and Emily Doe on the ground.

Turner: I don’t think I ran.

Q: You don’t remember running?

Turner: No.

Keep in mind that the event in question just happened earlier that night, and that even as he is speaking, Turner is nursing an injured wrist from when he was tackled as he tried to escape. But it’s all gone.

Q: Did you get a look at her while she—this was going on, while the guys were approaching you and talking to you?

Turner: No.

Q: Is it possible she was unresponsive at that point?

Turner: Honestly, I don’t know, because I—like, I really don’t remember. Like, I—I think I was kind of blacked out after, uh, like, from the point of me going—like, hooking up to her, to, like, me being on the ground with the other guys. Like, I really don’t remember how that happened.

I think I was kind of blacked out. So the whole story about flirting and kissing and Emily Doe agreeing to go back to his dorm was a fiction: it was what he hoped had happened. What actually happened will be forever a mystery. Maybe Turner and Emily Doe just stood there on the dance floor, repeating the same things to each other, over and over again, without realizing that they were trapped in an infinite, blacked-out loop.

At the end of the trial, Emily Doe read a letter out loud to the court, addressed to Brock Turner. Every young man and woman who goes to a bar or a fraternity party should read Emily Doe’s letter. It is brave and eloquent and a powerful reminder of the consequences of sexual assault: that what happens between two strangers, in the absence of real consent, causes genuine pain and suffering.

What happened that night, she said, shattered her:

My independence, natural joy, gentleness, and steady lifestyle I had been enjoying became distorted beyond recognition. I became closed off, angry, self-deprecating, tired, irritable, empty. The isolation at times was unbearable.

At work she would show up late, then go and cry in the stairwell. She would cry herself to sleep at night and in the morning hold refrigerated spoons to her eyes to lessen the swelling.

I can’t sleep alone at night without having a light on, like a five-year-old, because I have nightmares of being touched where I cannot wake up. I did this thing where I waited until the sun came up and I felt safe enough to sleep. For three months, I went to bed at six o’clock in the morning.

I used to pride myself on my independence; now I am afraid to go on walks in the evening, to attend social events with drinking among friends where I should be comfortable being. I have become a little barnacle always needing to be at someone’s side, to have my boyfriend standing next to me, sleeping beside me, protecting me. It is embarrassing how feeble I feel, how timidly I move through life, always guarded, ready to defend myself, ready to be angry.

Then she comes to the question of alcohol. Was it a factor in what happened that night? Of course. But then she says: Alcohol was not the one who stripped me, fingered me, had my head dragging against the ground, with me almost fully naked. Having too much to drink was an amateur mistake that I admit to, but it is not criminal. Everyone in this room has had a night where they have regretted drinking too much, or knows someone close to them who has had a night where they have regretted drinking too much. Regretting drinking is not the same as regretting sexual assault. We were both drunk. The difference is I did not take off your pants and underwear, touch you inappropriately, and run away. That’s the difference.

In his own statement to the court, Turner had said he was hoping to set up a program for students to “speak out against the campus drinking culture and the sexual promiscuity that goes along with that.” Doe was scathing: Campus drinking culture. That’s what we’re speaking out against? You think that’s what I’ve spent the past year fighting for? Not awareness about campus sexual assault, or rape, or learning to recognize consent. Campus drinking culture. Down with Jack Daniels. Down with Skyy Vodka. If you want to talk to people about drinking, go to an AA meeting. You realize, having a drinking problem is different than drinking and then forcefully trying to have sex with someone? Show men how to respect women, not how to drink less.

But that’s not quite right, is it? That last line should be “Show men how to respect women and how to drink less,” because the two things are connected. Brock Turner was asked to do something of crucial importance that night—to make sense of a stranger’s desires and motivations. That is a hard task for all of us under the best circumstances, because the assumption of transparency we rely on in those encounters is so flawed. Asking a drunk and immature nineteen-year-old to do that, in the hypersexualized chaos of a frat party, is an invitation to disaster.

The outcome of People v. Brock Turner brought a measure of justice to Emily Doe. But so long as we refuse to acknowledge what alcohol does to the interaction between strangers, that evening at Kappa Alpha will be repeated again. And again.

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.