Turner: Not more than anybody else that I had been with.
1 At the time of the incident, her blood-alcohol concentration was .249. His BAC was .171. She was three times the legal limit. He was twice the legal limit. These BAC numbers are according to expert-witness testimony.
2 A group of Canadian psychologists led by Tara MacDonald recently went into a series of bars and asked the patrons to read a short vignette. They were to imagine that they had met an attractive person at a bar, walked him or her home, and ended up in bed—only to discover that neither of them had a condom. The subjects were then asked to respond on a scale of 1 (very unlikely) to 9 (very likely) to the proposition: “If I were in this situation, I would have sex.” You’d think that the subjects who had been drinking heavily would be more likely to say they would have sex—and that’s exactly what happened. The drunk people came in at 5.36, on average, on the 9-point scale. The sober people came in at 3.91. The drinkers couldn’t sort through the long-term consequences of unprotected sex. But then MacDonald went back to the bars and stamped the hands of some of the patrons with the phrase “AIDS kills.” Drinkers with the hand stamp were slightly less likely than the sober people to want to have sex in that situation: they couldn’t sort through the rationalizations necessary to set aside the risk of AIDS. Where norms and standards are clear and obvious, the drinker can become more rule-bound than his sober counterpart.
3 Is drunken consent still consent? It has to be, the ruling goes on. Otherwise the vast majority of people happily having sex while drunk belong in jail alongside the small number of people for whom having sex while drunk constituted a criminal act. Besides, if M can say that she was not responsible for her decisions because she was drunk, why couldn’t Benjamin Bree say the same thing? The principle that “drunken consent is still consent,” the ruling points out, “also acts as a reminder that a drunken man who intends to commit rape, and does so, is not excused by the fact that his intention is a drunken intention.” Then the Bree ruling comes to the question taken up by California’s consent. What if one of the parties is really drunk? Well, how on earth can we decide what “really drunk” means? We don’t really want our lawmakers to create some kind of elaborate, multivariable algorithm governing when we can or can’t have sex in the privacy of our bedrooms. The judge concludes: “The problems do not arise from the legal principles. They lie with infinite circumstances of human behavior, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.”
4 It is also, by the way, surprisingly hard to tell if someone is just plain drunk. An obvious test case is police sobriety checkpoints. An officer stops a number of people on a busy road late on a Friday night, talks to each driver, looks around each car—and then gives a Breathalyzer to anyone they think is drunk enough to be over the legal limit. Figuring out who seems drunk enough to qualify for a Breathalyzer turns out to be really hard. The best evidence is that well over half of drunk drivers sail through sobriety checkpoints with flying colors. In one study in Orange County, California, over 1,000 drivers were diverted to a parking lot late one night. They were asked to fill out a questionnaire about their evening, then interrogated by graduate students trained in intoxication detection. How did the driver talk? Walk? Was there alcohol on their breath? Were there bottles or beer cans in their car? After the interviewers made their diagnoses, the drivers were given a blood-alcohol test. Here’s how many drunk drivers were correctly identified by the interviewers: 20 percent.
5 In a remarkable essay in the New York Times, Ashton Katherine Carrick, a student at the University of North Carolina, describes a drinking game called “cuff and chug.” Two people are handcuffed together until they can down a fifth of liquor. She writes, “For the supercompetitive, Sharpie pens were used to tally the number of drinks on your arm, establishing a ratio of drinks to the time it takes to black out—a high ratio was a source of pride among the guys.” She continues: