A question from Youtuber Bearing

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For those who have yet to experience him, Bearing is an Australian Youtube commentator who mostly posts responses to videos he disagrees with. Here he is.

https://www.youtube.com/watch?v=LAFh4xc ... e=youtu.be



So for those who didn't watch the video:

Does a woman have the right to get really drunk and have sex?

Yes, a woman has the right to get drunk and consent to sex.

However, one only has the right to have sex with a woman if she is capable of giving enthusiastic consent.

Sometimes drunk women (/people) can give that, but sometimes they can't. That has to be judged on a case-by-case basis.

Women also have the right to get really drunk and go cycling, but good luck riding a bike when you're off your head. You can't complain about your rights getting violated when you become too impaired to physically complete a task.

The question is not one of consent, it's whether a woman has the right to get really drunk and have sex.

Enthusiasm is not, nor should it be, a requirement of consent (ridiculous Californian bills aside) - though a lack of enthusiasm during the act itself would be sufficient to cool the desire of all but the most desperate or insecure of men.

Then the questioner doesn't understand his subject.

The relationship between alcohol and sex cannot be divorced from consent.

People have the right to get really drunk and have sex, as long as they are capable of giving enthusiastic consent. A prerequisite for having sex is the ability to consent. Those who cannot consent - children, most or all animals, the severely intoxicated - do not have the right to have sex. (Except, of course, that animals can have sex with each other, but that's by-the-by)

And by "enthusiastic consent" I mean a clear "yeah, let's do it", or some equivalent like tearing someone's clothes off. "She mumbled something that might not have been no" doesn't count.

It's his subject, and his angle is an intriguing one. You're the one trying to re-frame the conversation. Have you considered the possibility that it's you who has misunderstood the subject?



That is still not the legal standard for consent.



You definitely seem to have missed the point. If I was asking for "Consent for Dummies" then this might be considered an appropriate response. And though we could argue the point about whether inability to consent constitutes absence of a right, it's a redundant technicality.



And, depending on a variety of factors including location, they can have sex with humans too. But, likewise, that's by-the-by.



To be clear, I'm perfectly aware of what you mean by "enthusiastic consent". I happen to disagree with the concept in both theory and practice and do not consider it relevant to the topic.

Well then, will you please enlighten me - do people have the right to get very drunk and have sex? And how can you separate it from consent?

In my opinion, based on my understanding of the law as applied in the UK and the majority of the US, then yes, both rights are implicit aspects of freedom.

[/quote]And how can you separate it from consent?[/quote]

Does a woman who has not consented to sex have the right to have sex? Failing to exercise one's rights does not invalidate them.

I was under the impression that we weren't talking about the separate rights of "getting very drunk" and "having sex", but the stacked "getting very drunk and having sex" right. In the same way that one has the right to "get very drunk" and "drive a car", but not "get very drunk and drive a car".

Yes. As you say, failure to exercise one's right does not (usually) invalidate them. But that's rather disconnected from the premise of the question, which specifically relates to how alcohol and sex link up.

One does not have the right to have sex with someone who has not consented to have sex with you. One also does not have the right to force someone else to commit rape. If you get so off-your-face drunk that you cannot consent to sex, you no longer have the right to it until you regain the ability to consent.

If you really want to get technical, I'd argue that you don't have the right to have sex, you have the right to have mutually consenting sex. If you become physically unable to consent, then you cannot exercise that right.

Can you provide a link to the legislation that specifically states that an individual who is intoxicated forgoes the right to engage in sexual activity? Can you name the criminal offence which occurs should they drunkenly opt to do so?



I believe they're directly connected. Opting to consume alcohol might be considered voluntarily impairing your own ability to give informed consent.



Again, we're back to consent for dummies. Not helpful.



This, however, is interesting. How would you determine whether or not another human being is incapable of consenting? At what point would you impose removal of their right to provide consent?



I'd rather hope that mutual consent is implicit!

So a hypothetical scenario.

Person A is experiencing an 'en bloc' blackout. That is to say, they're not going to remember a significant portion of the night's events. However, for all intents and purposes, they appear to be compos mentis to person B, maintaining a conversation and functioning to a high capacity.

Person A initiates sexual intercourse with Person B, who reciprocates.

Thoughts?

There isn't one. I was merely illustrating how rights don't stack logically. Having right A plus right B doesn't mean you have right A+B.

I don't think we can consider it so ordinarily - or if we do, then we also have to concede that you're voluntarily waiving your right to have sex, because sex requires ongoing, informed consent.

There might be some circumstance - fetishism, maybe, or just for the plain thrill - in which a person actually wants to get completely off their face so they can't remember sex. But there would need to be measures in place to protect both parties. Maybe sober people could record themselves giving their consent to XYZ to happen to them when intoxicated at this time on this date?


Use some of those social skills which apparently exist...

Again, I raise "enthusiastic consent". Does this person seem actively engaged in what's going on? Do they give clear positive indications when you ask if they want to do it? If yes, they're capable of consenting.

It's not a "removal of a right", it's them losing their ability to exercise their right. Again, I don't think riding a bike legally or morally requires you to be sober. If it does, then substitute in "doing your tax returns". You always have the right to ride a bike, do your tax returns, or consent to sex. It's just that after a while, you might not be physically capable of doing it.


I don't know enough about this to comment. I don't think that Person B has committed a crime, but Person A might be the victim of a crime. Schroedinger's crime. A bit like when a sleepwalker stabs someone.