If an initiative being pushed by state Rep. Terese Berceau, D-Madison, succeeds, alcohol might be reinstated as a factor determining consent in rape cases.

“We’re looking for some consistency here,” said Tom Powell, assistant to Rep. Berceau. “Everywhere else in state statutes, alcohol is included as an intoxicant.”

Alcohol is considered as an intoxicant in laws governing the use of snowmobiles, all-terrain vehicles, boats and cars, but an amendment to a 1997 bill specifically excludes alcoholic beverages as an intoxicant which can leave a person susceptible to sexual assault.

Powell said Rep. Scott Jensen, R-Waukesha, pushed the amendment in order to regain favor with the Tavern League, which withdrew its support of him in an election that he narrowly won. Powell said Democrats such as former state Rep. Tammy Baldwin compromised and agreed to the amendment for political reasons.

It is currently illegal in the state of Wisconsin to have sex with a person who is unconscious for any reason. It is also illegal to have sex with someone who is barely conscious from any controlled substance, or any controlled substance in combination with alcohol. But it is not illegal to have sex with someone who is unconscious due to consumption of alcohol.

Dane County District Attorney Brian Blanchard said his office had seen applicable cases in the past.

“I do support Rep. Berceau and the legislation she might [propose] on this. I would like to see the law changed,” Blanchard said.

Powell said in such cases the burden of proof becomes higher for the prosecuting attorneys, making it difficult, but not impossible, for prosecuting attorneys. If a defense attorney could prove a victim was moving or twitching, it would not fall under the current definition of the law.

“Alcohol is involved with a great number of sexual-assault cases, but that number increases greatly when you’re on campus,” said Austin King, the legislative issues coordinator for Men Opposing Sexual Assault. MOSA and other groups have been pressing Berceau and other legislators, such as Rep. Mark Pocan, D-Maple Bluff, to support the legislation.

“We certainly see sexual assault in the environment of drug and alcohol use. This is a relatively narrow category where we can’t prosecute,” Blanchard said. “A charge of second-degree sexual assault could still be pursued if the victim was asleep.”

An amendment to the current legislation would not cover instances of a person regretting a drunken love tryst.

“There is a point you cross between intoxicated and incapacitated. This doesn’t mean waking up from a one-night stand and deciding it wasn’t the best decision,” King said.

University of Wisconsin Police Sergeant Kurt Feavel said the police investigate any cases of sexual assault they are made aware of, regardless of circumstances.

“Victims of such assaults will more often go to the Dean of Students’ office because they don’t want to prosecute, or feel certain circumstances won’t allow them to prosecute, for example if they were assaulted while drinking underage,” Feavel said. “But procedurally, the dean’s office recommends contacting the police to anyone who comes to them.”

Feavel said about 60 percent of cases the UW Police are made aware of have involved alcohol as a factor.

“Either one party or the other, or many times both parties, have been drinking,” Feavel said.

In 2001, 59 UW students reported being sexually assaulted to the dean’s office, and 22 of those victims contacted a police agency. In 2000, 58 students reported an assault.

“The worse thing is when somebody was raped while they were that drunk and is motivated to press charges, which is rare, it can be very difficult to prosecute,” King said.

Prior to 1997, the law did not list specific intoxicants in its sexual-assault laws.

“Traditionally, what states do is say an intoxicant is anything that intoxicates,” King said.

In that year, a bill was proposed to list date-rape drugs such as flunitrazepam as specifically prohibited intoxicants, and in a political compromise, an amendment to the bill was added which reads, “Alcohol is not considered an intoxicant.”

Powell said alcohol is a more common intoxicating factor in such cases, citing a 1999 study by the Journal of Analytical Toxicology, which found alcohol in the urine of 451 victims of sexual assault, compared to 48 for the date rape drug GHB, and none for flunitrazepam.