September 23, 2014 Leave a comment
I presume that most people who drink alcohol (i.e., most people) and most people who have sex (i.e., most people) have, in fact, engaged in sex while under the influences of alcohol. And I would also posit that in a substantial majority of these cases what is happening is not a crime. Yet, we keep hearing from some quarters that you cannot consent to sex when intoxicated. But that’s not true and this Slate article makes a strong case for why it is particularly harmful to spread this untruth:
The key is to make clear exactly when it is a crime to have sex with a person who is too intoxicated to be capable of giving meaningful consent. Here’s the proper legal framework: Sex with someone who is too drunk to consent is a crime even if the perpetrator uses no violence whatsoever to force his way. It is a crime even if the survivor does not physically resist or verbally object. It is a crime even if she is not passed out but is conscious before and during the encounter. It is a crime even if she was not drugged or forced or tricked into drinking by the perpetrator but got drunk on her own…
There’s no similar line for determining when someone is too drunk to consent to sex. Instead, the question is whether, under all the circumstances apparent to the perpetrator, a reasonable person would know that the victim was too intoxicated to give a meaningful consent. Under that standard, the prosecution may win a conviction only by proving that the victim’s intoxication was extreme and verifiable. She has to be way past buzzed or tipsy. She has to be very drunk.
The cases and the literature on rape give examples. For example, a person who is falling-down drunk, too intoxicated to walk. Or unable to talk clearly or coherently. Or too uncoordinated to undress herself. Or sick drunk, slumped over a toilet vomiting or urinating on herself. [emphasis mine]
In conditions like these, there’s just no possibility of meaningful consent…
Okay, so here’s the why it’s a bad thing part:
Perhaps because it is illegal for the vast majority of their students to drink in the first place, many colleges do a poor job of explaining the kinds of circumstances in which it is unreasonable to believe that a drunk person is consenting. Some schools tend to issue sweeping warnings, such as: “Never mix drinking with sex.”
This sort of vague preaching is worse than useless. It fails to tell potential perpetrators when they are on the verge of crossing the line. And it may falsely suggest to potential victims that the law protects them against virtually all kinds of intoxicated sex, when it does not. For now, most cases of drunken sex will be—and, probably, should be—beyond the reach of the law. Young women need to know this. They need to know that the law treats sex after drinking as assault only in extreme circumstances.
Good to see some pushback on this unhelpful and potentially harmful approach to thinking about sex and alcohol. Nobody should ever coerce another into having sex, nor, of course, take advantage of an extremely debilitated state (caused by alcohol or anything, for that matter) to have sex with another person, but that is no reason to criminalize the every day occurrence of people under the modest influence of alcohol having sex.