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