When Does Drunk Sex Become Rape?

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Illustration by Lucy Han

In her first semester at the University of Portland, Clara Ell says that her classmate sexually assaulted her while she was too incapacitated to consent. He insists they had consensual sex—and, in a subsequent disciplinary hearing, school administrators agreed with him. Clara’s case raises many of the most pressing and confusing questions in the campus rape debate: What, exactly, is consent? And when is someone too intoxicated to give it?

In the first semester of her freshman year at the University of Portland, Clara Ell claims she was sexually assaulted by a male student in her dorm room after a night of heavy drinking.

The way the night ended is difficult for her to remember, but the way it started is crystal-clear: Clara—a lanky girl with big brown eyes and a long mane of curls—wandered a few blocks off-campus to a house party. She and her high school friend-turned-roommate, Krista Baldwin, were recent recruits to the women’s lacrosse club team, and on this night, the captains were hosting a “team bonding” party. The theme of the party was “Star Spangled Hammered”; Clara wore denim cutoffs, a blue and white striped tank top, and a red sweatshirt. She borrowed a hardhat from a friend, decorated with an all-over flag print.

Around 9 PM, the 18-year-old girls walked five blocks from their dorm on the small Catholic campus to the party. The all-girls party was still quiet when they got there, and the freshmen joined in a round of a drinking game called “Rage Cage” with their teammates, a flurry of ping pong balls bouncing into red Solo cups filled with beer. Like most drinking games, it ends with one player drinking a lot of beer from the filled-to-the-brim “bitch cup” at the center of a table.

“I lost,” Clara recalls. She chugged the bitch cup.

The rest of the party unfolded like college parties tend to: It got bigger as the hours wore on. Drinking games turned to tequila shots, and tequila shots turned to chugging from bags of cheap wine being passed around the room. Clara remembers that someone threw up in the front yard. After she, Krista, and another friend—who asked to remain anonymous for this story—saw UP Public Safety officers pulling up, they scurried off into the North Portland neighborhood. At another house, Clara swigged directly from a bottle of Fireball whiskey. Her friends told her that part later; she has no recollection of it.

Krista remembers. Her roommate was tanked. “I stopped drinking just to make sure she was OK,” she recalls.

Back at the dorm, Krista sat Clara down on the floor and fed her snacks before leaving again. Clara has flickers in her mind of sitting on the floor eating, and that she had her iPhone in her hand when, at 1:57 AM, it buzzed. It was a friend, Jack (not his real name). “Hey,” he said. A few minutes later he added, “I hope you’re doing well Clara, goodnight.”

Clara and Jack, a classmate of hers, had a short-lived romantic relationship, but Clara says they had not had sex before that night. Krista, too, had befriended Jack—calling him “her best friend on campus”—but she says things got weird for all of them after he and Clara kissed and messed around.

According to Clara, Jack had feelings for her, but she wasn’t into it. Two weeks before, she had broken it to Jack that she didn’t feel the same about him. It was awkward, and Clara told Jack a week later that maybe they shouldn’t talk at all. “I said, ‘I just want to be friends,'” she remembers. She felt bad that she didn’t like him back.

That night, in a series of text messages provided to Broadly by Clara, Clara texted Jack back, urging him not to “shut me down so quick.” “I wanna be pals, I’m sorry things didn’t work out for us past that,” she said. “How are you?”

The teenagers began a rapid-fire text exchange; Jack said he was “a little drunk still,” and Clara responded that she was “still drunk too.” The conversation went on in the form of long, slightly anguished text bubbles typical of the young and inebriated. Clara apologized for treating Jack poorly and asked why he still even liked her, and he replied, “I think that you’re really pretty. You have a great body, you’re not afraid to be yourself, and I love your lips. I could kiss you forever.”

 Soon, though, Clara began to send him garbled, misspelled missives: “I want to be your friend because I don’t want to lose you,” she wrote. “That isn’t a Cersley mean that I’m not drunk do you just mean so that’s what’s easier. I hope you understand man, I’m also pretty fucking waste of right now he can’t tell ha ha ha ha.”

Jack told her that he couldn’t make out exactly what she meant, to which Clara replied that she had been trying to explain that she was “still into you too,” adding, “I’m sorry, again drunk texts.” They continued talking, and Jack said he wanted to see her; Clara demurred, writing, “Tonight is not the best idea.” When asked why, she said, “Because I’m drunk haha and who knows what I’ll say or do without Keaton around,” misspelling her roommate Krista’s name, then explaining that Krista had gone to a nearby gas station.

“What if I just showed up anyway?” Jack asked.

“I don’t know what would happen,” said Clara.

The two continued to text and then, a few minutes later, Jack sent another text: “How about you let me in,” he said, “Then we can talk about it.”

“Where are you?” Clara wrote.

“Outside.”

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