Thursday, April 15, 2010

Does a drunken "yes" mean "yes"

The area of drunken consent in rape cases is a mine field where one needs to tread carefully. Pennsylvania Law is somewhat imprecise in this area (18 Pa.C.S. § 3121).

The classic definition of an alcohol induced blackout has the inebriated person acting relatively normally at a certain time, but the next day unable to remember anything concerning the period of time in question. Intoxication can result from ingestion of drugs or alcohol, but most of the case law in Pennsylvania seems to deal with alcohol intoxication. Is drunken consent real consent?

Young adults have beer parties, Jello shot parties, etcetera. For may young Americans, alcohol is the social lubricant. At what point must the healthy American male cease and desist from any attempt to have sex with a female who has been drinking? Let's face it most rapists are men and most victims of rape are women.

A complainant’s intoxication can impact consent in a rape trial in two possible ways. First, the complainant and the defendant could disagree about the fact or level of intoxication – i.e., capacity, so that the defendant claims either that the complainant was not drunk at all, or that she was not drunk to the degree that she was incapable of consenting but merely was disinhibited, and therefore she was in fact capable of, and did, consent. Second, there could be disagreement about whether or not there was consent – i.e., the defendant claims that the complainant gave consent, albeit drunken, and that she was capable even though intoxicated, whereas the complainant states that she cannot remember what happened because she was extremely drunk but that she knows that she did not want to have sex with the defendant (and she may also claim that she was too drunk to resist). The claim then could be either that she was not intoxicated (enough) and capable, or, that despite a high level of intoxication, she did consent.

What is consent? Is it a state of mind? Is it a set of actions or behaviors performed in a certain way? Is consent just an attitude formed in the mind of the consenter? Judges and juries have to deal with these issues every day in Pennsylvania. After the fact, they have to figure out through testimony and other evidence what version of reality to buy. A "yes" or a "no" is often interpreted by the actions of individuals. One court recently said that consent is not an attitude at all, "It is to act in a way that has conventional significance in communicating permission.” Inevitably, the issue turns on what the jury believes the complaining witness did or said to give the defendant permission to act.

Many feminists will not like some of the things we are saying here. They will argue that there is much ambivalence in a mental state, etcetera, etcetera. There is much controversy as of late on college campuses and many University codes are weighing in with their positions

Some local University sexual assault policies:

University of Pennsylvania

Assent shall not constitute consent if it is given by a person who because of youth, mental disability or intoxication is unable to make a reasonable judgment concerning the nature of or harmfulness of the activity. This policy applies to groups as well as individuals.


Or cannot give consent (e.g. due to intoxication)


(c) Forcing, or attempting to force, any other person to engage in sexual activity
of any kind without her or his consent.
Consent is not considered given by a person when he/she is unable to make a
reasonable judgment concerning the nature or harmfulness of the activity because
of his or her intoxication, unconsciousness, mental deficiency or incapacity, or if
consent is the product of threat or coercion.


Don’t take advantage of someone’s drunkenness or drugged state.

Saint Joseph's University

There are situations when a person may be considered incapable of giving consent such as, if he/she is: asleep, unconscious and/or losing and regaining consciousness, or clearly mentally or physically incapacitated, for example, by alcohol and/or other drugs. A verbal "no" even if it may sound indecisive or insincere, constitutes lack of consent. Further, it is not necessary that an individual resist an attack or otherwise affirmatively express lack of consent.

Use of alcohol and/or other drugs shall not diminish one's responsibility to obtain consent. Being in an on-going relationship does not preclude the possibility of sexual misconduct occurring within that relationship.


A man may also wrongly assume that a woman is automatically sexually “available” when there is alcohol involved. Sexual assault also may result from an assailant taking advantage of a woman’s diminished capacity to set limits or protect herself when she has been drinking.

The new standard seems to be to an attempt to reshuffle the concept of consent.  Would it be a good idea to breathalyze rape victims to determine  the level of their intoxication?  Should we set a new standard for  drunken sex as there is for drunken driving?  In Britain, there is serious legislative movement towards doing just that.

This is complicated stuff to attempt to understand a woman's experience of sex when intoxicated, or a man's perception of a woman's intoxicated consent. It is safe to say that raging hormones and binge drinking don't mix well together.

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