Drunken Regret, Who’s Responsible?

College students drink alcohol, sometimes to excess. Who knew? Well, everybody, including the nice folks who run Northeastern University, which is why the Supreme Court of Massachusetts held that colleges have a responsibility to protect their students from the consequences of their actions.

Dangerous drinking-related activities are a foreseeable hazard on college and university campuses.

Well, that clears things up, right? Except the scenario presented in the case is replete with the interconnecting tropes and craziness that is similarly a foreseeable hazard on college campuses.

Not long after arriving at the party, the plaintiff became intoxicated and vomited repeatedly in Smith’s bathroom; two student acquaintances who were attending the party stayed with her in the bathroom and gave her water and crackers to try to control the nausea. The students also had the plaintiff wait in Smith’s room and drink water, as they were somewhat concerned that the proctor at the plaintiff’s residence hall might stop the plaintiff at the entrance because she was too visibly intoxicated. They offered to walk the plaintiff home, but she declined because she knew that they were planning to attend another party, and she did not want them to walk across campus to her residence and then have to walk back to the location of the second party.

The female student was drunk. She wasn’t incapacitated, but drunk. A male student, who was also drunk, offered to take her back to her dorm, and on the way, they kissed and, well, one thing led to another.

The two students went to A.G.’s room, where A.G. initiated sex with the plaintiff. The plaintiff later told Northeastern police that, “although she was very uncomfortable with what was going on, she didn’t want to hurt his feelings by saying anything to him or telling him to stop.”

The day after, the plaintiff went to campus police, asserting she had been raped. The police decided not to pursue the allegation. A campus disciplinary complaint was filed, resulting in a hearing on the female student’s complaint of “regret rape.” After review of video and texts, the male student was found not responsible.

But somebody had to be responsible. After all, it’s inconceivable that a female student who got drunk of her own volition, had sex of her own volition while drunk, would not have someone, anyone, responsible to protect her from her own choices.

And the Supreme Court agreed.

We agree that, here, a special student-university relationship between the plaintiff and Northeastern did exist. See Dzung Duy Nguyen, 479 Mass. at 450 (describing special relationship). We nonetheless conclude that Northeastern had no duty to take steps to prevent the alleged sexual assault, because it was not reasonably foreseeable that the plaintiff would suffer a criminal act by a third party or other imminent physical harm due to her intoxication at the time of the incident.

The irony here is that the affirmance of dismissal of the complaint was not based upon any gap in the duty of Northeastern to be responsible for the choices of a drunken student, but upon the intervening even of “a criminal act by a third party.” Or to be more direct, a drunk male student and drunk female student having sex that she regretted the next day.

The defendants nonetheless maintain that whatever special relationship exists between a university and its student does not impose a duty to protect a student while he or she is voluntarily intoxicated. They argue, therefore, that the Mullins duty does not apply, and that Northeastern had no other duty to protect the plaintiff from any potentially harmful consequences of her choice to drink alcohol. In both respects, we disagree.

The basis for the court’s disagreement, however, is hard to explain. Are they adults? Are they children? While in loco parentis is theoretically dead, is its zombie still roaming campus?

While universities and colleges nonetheless are “not responsible for monitoring and controlling all aspects of their students’ lives,” the contemporary paradigm of the university student relationship recognizes that students’ “right to privacy and their desire for independence may conflict with their immaturity and need for protection.” See Dzung Duy Nguyen, 479 Mass. at 451-452. Accordingly, we reject the defendants’ blanket contention that, necessarily, universities have no special relationship with voluntarily intoxicated students.

What the court fails to address is where the line is drawn between respecting the privacy and choices of its students, while being liable for its failure to protect them from their voluntary decisions. But the court’s rationale isn’t based on some cognizable line, but the extent to which colleges have already embroiled themselves into the lives of students, overseeing much of the trivial details of their daily lives because they can’t survive without a grown-up’s protection and intervention.

Northeastern, for example, directs students to contact Northeastern police officers for assistance when faced with crises that occur on university grounds, including those caused by alcohol. See Northeastern University police department, Emergency Medical Services, Northeastern also offers “medical amnesty” for students who contact it in a medical emergency involving underage consumption of alcohol, and offers amnesty from punishment for students and organizations who reach out for help in such an emergency.

If the college is going to offer services to assist students, then the court held that it assumes liability for students who fail to avail themselves of these services, giving rise to a curious disincentive to do anything to help students.

Given these efforts, it is foreseeable that a student will reasonably rely on his or her college or university for aid in the event of an alcohol-related emergency.

Short of monitoring every student’s movement, and the contents of their soda bottle filled with booze, which the court says they are not required to do, how could a college possibly know that a student needed emergency intervention such that it assumed liability? Who knows?

But more importantly, how does a college offering assistance should a student seek it out give rise to liability when a student makes a third choice, beyond the choice to get drunk, beyond the choice to have sex, and finally arriving at the choice of not asking for emergency assistance from the college? At what point does a female student get to make her own choices, and take responsibility for them, even if she decides the next day that she chose poorly?

9 thoughts on “Drunken Regret, Who’s Responsible?

    1. SHG Post author

      During the short-lived Sexual Revolution, the point was that a woman could have sex outside of marriage without shame. But then the Puritans returned and sex is dirtier and more traumatic for a woman today than it was since the ’50s. Andrea Dworkin won.

  1. B. McLeod

    Before panels of judges are deemed qualified to rule on these cases, they should be required to administer a university for a period of at least three years. Once they have tried it, they might be able to refrain from silly, knee-jerk pronouncements.

    1. Brian Cowles

      I’m not sure I’d want ex-university administrators in charge of Title IX sex discrimination lawsuits.

  2. Rxc

    No one wants to talk about personal responsibility for very personal and private decisions and acts. I think that personal responsibility is an evil White Concept.

  3. Andrew Cook

    I am not a lawyer, I’m just a website developer. But I’m recognizing some parallels here.

    In 1996, in order to fight the evil scourge of porn, Congress passed the Communications Decency Act. In addition to a bunch of unconstitutional prior restraint, it included two very important protections: websites aren’t civilly liable for what their users publish, and websites aren’t civilly liable for any moderation they do or don’t take against those publications, so that they’re free to come up with better ways of keeping porn at bay.

    If we ever get a Congress that can work together again, I’m thinking of some find-and-replace that could help:

    In 2021, in order to fight the evil scourge of intoxicated college student sex, Congress will pass “A.G.’s Act”. In addition to a bunch of unconstitutional prior restraint — that the ACLU *won’t* litigate this time — it will include some very important protections: universities aren’t civilly liable for their students’ drunken activities, and universities aren’t civilly liable for any actions they take or decline to take against those activities, so that they’re free to come up with better ways of keeping drinking and sex at bay.

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