What if the person I had sex with was drunk?

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What if the person I had sex with was drunk?

Consent is complicated, especially when alcohol or drugs are added to the mix. If you had sex with someone who had been drinking, it is possible that they were too drunk to consent. However, people who are drunk can consent to sexual activity.

Also, just because someone is capable of consenting to sex, does not mean that they did consent to the sex that they had with you. Consent is the voluntary agreement to engage in the sexual activity as it is happening, and there are certain circumstances where people are not capable of consent, event if they think they are. Consent is complicated, and I have a specific FAQ about what it means in sexual assault cases.

The hard question is how drunk is too drunk to consent. Of course, no one can consent if they are unconscious, or in a “state of automatism” (which is the very rare state of being so intoxicated that you are “zombie-like” and cannot be held accountable for your actions), and most people can consent after one or two drinks, or even when they are somewhat drunk. Even when drinking leads someone to make poor decisions, have memory loss, or lose self control, they may still have capacity to consent – it depends on the circumstances.

A drunk complainant is not capable of consenting to sexual activity if they are not capable of one or more of the following:

  1. Appreciating the nature and quality of the sexual activity.
  2. Knowing the identity of the person or persons wishing to engage in the sexual activity.
  3. Understanding they could agree or decline to engage in, or continue, the sexual activity.

If you are facing a sexual assault charge, you are presumed innocent, and the crown must prove beyond a reasonable doubt that the complainant did not consent to the sexual activity for you to be found guilty. Sometimes, the complainant does not remember what happened during the alleged sexual assault because of drinking. In these cases, the crown prosecutor must rely on circumstantial evidence to prove that the complainant was not capable of consenting (for example, evidence that the accused was unconscious in the backseat of a taxi when police arrived immediately after the sexual activity and was therefore almost certainly unconscious during the sexual activity).

There are also some cases where someone drank enough to lose their memory, but there was not enough evidence to prove that they were incapable of consenting, so the accused is acquitted. For example, in one recent case, the complainant drank four to five beers over a 4.5-hour period and had gaps in her memory, including the events just before the sexual activity (in which clothing was removed, the two may have kissed, and the sex was initiated), but the crown did not prove beyond a reasonable doubt that she was incapable of consenting. The accused was acquitted in that case.