The faculty members, including emeritus professor Alan Dershowitz, said the policy should be retracted because it denies the accused access to legal counsel, knowledge of the accusations against them and the right to question witnesses, potentially exposing them to “unfair and inappropriate discipline.” It also holds one party more culpable when both are impaired by alcohol or drug use.What's the problem with holding one party more culpable when both are impaired--provided that one was the sexual aggressor? A lot of people seem to find that unfair, but is it really?
A long time ago when I lived in Boston I was on a jury in a manslaughter trial. The drunk defendant (along with a group of friends) had chased the victim into a subway station shouting racial epithets and threats. The victim, also drunk and evidently fearing for his life, decided to walk home along the tracks (above ground). He was killed by an oncoming train that he might have heard if he hadn't been drunk.
Though this was 30 years ago, I still vividly remember what the prosecutor said about intoxication. About the defendant: you can't hide behind alcohol. If you committed a criminal act, the fact that you were drunk is not exculpatory. About the victim: you take your victims as you find them. The victim may have heard the train if he hadn't been drunk, but the defendant cannot use that as a defense. These two rules made sense to me and to all the other members of the jury. We convicted the defendant, and later realized this was a retrial: another jury had previously convicted the defendant too. The prosecution's instructions about alcohol were persuasive to all 24 jury members.
Now transpose into a sexual scenario. A drunk man forces himself on a woman, who doesn't resist effectively because she's drunk. It's surely the same: the man can't hide behind alcohol; he takes his victim as he finds her. So I have no idea why Prof. Dershowitz & Co. find any problem with holding "one party more culpable when both are impaired by alcohol or drug use." Would they really want the defendant in the manslaughter case to be acquitted because the victim was also drunk?
Maybe to the average person (but surely not the law professors) it may appear as if there's an asymmetry here--we're holding the man to higher standards. But no, that's not true. We're holding the man responsible for criminal acts he performed while drunk. The woman performed no such criminal acts. She only made it easier for the man to perform his criminal acts. There's no inconsistency in saying his inebriation doesn't excuse him and then saying her inebriation doesn't excuse him either.
Of course, not every case where both parties are drunk is a case of rape. If both actively participate in sex acts, with one no more the aggressor than the other, then it wouldn't make sense to see the man as guilty of non-consensual sex and not the woman. But in cases where women file complaints, usually there's an allegation of aggression on the man's part. That's why one party is responsible and the other isn't, even though both are drunk.
People seem to want to find fault with both parties and surely we can do that. If drinking makes you less in control of yourself, you shouldn't do it in a setting where self-control is important. Men are foolish to get totally drunk at college parties and so are women. The men because they're liable to commit acts they're going to be accountable for. The women because they become defenseless against those acts (or maybe even, in very rare case, commit them). If you're drunk, you shouldn't drive a car, even if the person you hit may be drunk too. If you're drunk, you shouldn't ride a bicycle, making yourself defenseless. Being foolishly defenseless obviously doesn't mean being to blame.
Surely it would be completely backward to revise the way we handle double-drunk cases, holding both parties somehow "accountable" even though one killed the other, raped the other, maimed the other, and so on. If the law professors aren't for that across the board (surely not), why are they for that in campus sexual assault cases?
p.s. Maybe I'm not understanding the professors' point--I couldn't find more about the Harvard policy on sexual assault and alcohol, or more about the law professors' objection, despite some energetic googling. If they're not saying men can't be accountable when women are also drunk, I'd love to know what they are saying.