Written by Samantha Harris, Esq. - Allen Harris
In my work handling campus sexual misconduct cases, freshman fall stands out as a particularly vulnerable time. Students are on their own, often for the first time, and some are having their first experiences with alcohol and sex. As a result, the first few weeks of school are a time when we often hear from a lot of students facing sexual misconduct allegations.
Many of the campus allegations I see involve poor sexual communication, alcohol, or both. These problems can begin in an ordinary college social setting, between students who leave an encounter with very different understandings of what happened.
Fortunately, there are some things you can do to protect yourself and avoid situations where miscommunications can lead to allegations. In particular, it’s critical to be direct about consent and, when alcohol makes the situation uncertain, wait until another day.
When one person thinks she said no
We have seen many cases in which two students are hooking up, and the female student says something like “I should really go, I have a test tomorrow” or “I’m really tired” rather than directly saying “I don’t want to go any further.” The male student, not picking up on the cue, asks again to go further, and – because women have often been socialized not to hurt people’s feelings – the female student says yes rather than continuing to demur. This often leads to a situation where the woman feels like she said “no,” but the male student genuinely believes the encounter was consensual.
That is why I urge students to ask for a clear, verbal “yes” at every stage of sexual activity. If someone says they are tired, or should get going, pause and ask what they want. Do not treat uncertainty as permission to keep going. Asking can feel awkward, but it gives the other person a chance to speak plainly, and you need to accept the answer without pressure.
Your school’s rules matter here. Northwestern’s consent guidance, for example, requires knowing, voluntary and ongoing agreement expressed through understandable words or actions; silence or lack of resistance alone is insufficient. The University at Albany’s guidance likewise requires this type of “affirmative consent.” Read your own school’s current policy. Our student guide to affirmative consent explores the difficulties these standards can present in practice.
Alcohol makes an already uncertain encounter harder to assess
At my firm, alcohol is another major driver of sexual misconduct allegations.
Drinking is a familiar part of that setting for many students. According to NIAAA’s analysis of the 2024 National Survey on Drug Use and Health, 46.6% of full-time college students ages 18 to 25 reported drinking in the past month, and 25% reported binge drinking. Those figures describe drinking among college students, rather than the frequency of sexual misconduct, but they help explain why a conversation about consent needs to address alcohol.
You may also know less about someone’s drinking than you think. A lot of people “pre-game” parties and may not drink much once they get there. Seeing someone have only one drink does not tell you how much they consumed before you met them.
Many people also do not know that being blacked out is different from being passed out. Someone can be walking, talking and behaving in a way that seems normal while alcohol is preventing them from forming lasting memories. NIAAA explains that during a blackout, a person remains awake, but alcohol disrupts the transfer of memories into long-term storage.
That can leave one student remembering an encounter that the other cannot recall. Memory loss alone does not settle what was communicated or whether the person could consent at the time. Nor does apparent agreement settle capacity: Northwestern’s guidance expressly recognizes that someone may appear to agree while lacking the capacity to consent. A verbal “yes” does not resolve that problem.
You can leave the encounter for another day
This is why my advice about parties is straightforward. If you connect with someone and alcohol makes the situation uncertain, get their contact information if they want to share it, and reach out the next day. You can find out whether the interest is mutual when drinking is no longer clouding the encounter. Consent still needs to be clear and voluntary then.
If you are already facing an allegation, Allen Harris Law represents students in campus sexual misconduct matters. Contact our firm to discuss the allegation and your school’s process.