Consent and incapacitation: the hardest fight on campus.
Nearly every contested campus case reduces to one of two questions: whether consent was communicated, or whether one party could give it. They are different questions with different evidence, and the first task of a defense is knowing which one is actually in dispute.
Affirmative consent, and what it does not require.
Affirmative consent standards - statutory in New York and adopted by policy at most institutions elsewhere - require a knowing, voluntary and mutual decision, communicated by words or by actions creating clear permission. The inclusion of actions is significant and frequently overlooked: the standard does not demand a verbal script, and conduct evidencing clear permission satisfies it. What it does exclude is inference from a prior relationship, from previous encounters, or from silence.
Capacity, and the blackout distinction.
Incapacitation means an inability to understand the nature of the conduct or to communicate a decision about it. It is not the same as intoxication, and it is not the same as later amnesia. The clinical literature is consistent that alcohol-induced blackout impairs the formation of memory while frequently leaving speech, navigation, and decision-making substantially intact. A person may therefore be genuinely unable to remember an encounter during which they were functioning - and the standard asks about the function, not the memory.
Choosing the right question.
Respondents lose cases by arguing the wrong one. Where the complainant remembers the encounter and disputes that consent was given, a capacity argument is irrelevant and reads as evasion. Where the complainant does not remember and the record shows coherent function, the capacity analysis is the entire case and a consent narrative adds nothing. Identifying which question is live, from the production rather than from assumption, is the first analytical step.
The evidence, and its shelf life.
Complete message threads rather than the excerpts a complainant produced, because context usually resolves an excerpt. Ride, delivery and payment records, each of which is a decision with a timestamp. Building access logs, held by the institution on short retention. Video, overwritten fastest of all. Witnesses to the surrounding hours. And the morning-after messages, which in our experience carry more weight with decision-makers than anything else in a file - and which are among the first things deleted by someone trying to tidy up.
Why you should call us.
If you are scrolling through search results trying to find someone to defend you, your search is over. You have found Spodek Law Group P.C. - and we are not your average defense firm. We know a thing or two about defending the accused in campus cases - and in the criminal courts that run alongside them. Over 50 years of combined experience, some of the toughest cases in the country, and we have come out on top. We have seen it all, and we empathise with you. We understand how frightening this is, and we have a legal team who can fight and win.
Unlike other attorneys who care about their reputation with the administrators and the prosecutors, our only goal is getting you the best outcome. We owe loyalty to only you. Our lawyers listen to you, your fears, and your goals. We care about your story, and that is where the work begins - by understanding and listening to you.
On billing, we are transparent about our fees, and there are no surprises. Choosing a lawyer is a big deal and cost is a real issue, so we are committed to being your champion irrespective of your ability to pay. Our firm has a simple belief: lawyers should only take on clients whom they can truly help. Many firms are mills that take every case through the door. We do not.
Working with us starts with a risk-free consultation, in person or over the phone. You can ask us anything, for as long as it takes, and we encourage you to ask the tough questions. We are available 24/7, we practise coast to coast, and every client has direct access to a partner. Call 212 300 5196 - an attorney answers.
