Is having sex with a drunk person rape?

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The original question is fundamentally flawed.

There is no single answer to the question. It must be asked not in the general sense, but rather with respect to a specific individual. The question is not, "Can a drunk person consent to sex?" but rather, "Did this drunk person consent to sex?"

We can create hypotheticals 'til the cows come home about the impact of drugs or alcohol on a person's capacity to form and to maintain and informed consent. None of that really matters. What matter is the test, "Did the accuse take the steps that a reasonably prudent person would have taken in the circumstances to ensure that the other person had given a full consent?"

Since that objective test is based upon the specific circumstances in which an accused found himself (or herself), it cannot be answered in the abstract.

Visagrunt, I have to disagree with you on this one. Just like a 14 year old cannot 'consent' to sex with a 25 year old, regardless of her/his words or actions, sometimes a person is incapable of consenting to sex due to inebriation, regardless of words or actions.

Shouldn't, you know, people drink responsibly so that they don't put themselves in that place to begin with?

No one blames the other car for an accident caused by a drunk driver.

If booze makes someone loose, then they should have thought of that in the first place rather than looking to blame someone else afterwards.

(It's different if a person is too sleepy to function, of course.)

The comparison with drunk driving is a false analogy. Getting in the first place may have been a bad decision but that doesn't mean it's ok to take advantage of the drunk person.

I don't think you read what I wrote.

A fourteen year old cannot consent to sex with a 25 year old not because the 14 year old lacks the mental or emotional capacity, but because statute law says that a fourteen year old can never have the legal capacity to consent. That law is unambiguous, and uncritical. It makes absolutely no pretense at evaluation of the individual fourteen year old, it simply says there can never be a valid consent, period.

As for the latter half, of your post, the word, "sometimes," is the operative element, which puts it foursquare within what I wrote. You cannot evaluate capacity in the abstract, you must evaluate it in the specific circumstances of the individual.

Remember that the absence of consent is not an element that the Crown is required to prove in a prosecution. Rather, consent is a defence that must be raised by an accused, and proved on the balance of probabilities. Since the burden lies on the accused to demonstrate consent, the reasonableness of the efforts by the accused to ascertain consent, its validity, and its continuation are relevant to that test.

I did read what you wrote, Visagrunt, but I see the problem with my wording; to make it clear, how about this: A person who is unconscious due to alcohol can never consent to sex. A person who is so drunk that they cannot walk or cannot speak can never consent to sex.

Not really.

Both lead to acts that people may regret, and the responsibility is on the person who missuses the booze. In fact, one can say that "sex" is a far more basic and natural act than driving, so the person whom asks the drunk person for sex is actually doing what a human does naturally.

Booze can remove certain inhibitions, but that's something people should know before they drink such.

It's not taking advantage of a drunk person if they're still aware of their actions (which they are); it's their fault for taking a mind altering substance in the first place to an amount that changes their personality (in fact, it doesn't really change it).

Actually no, if someone does something wrong, then responsibility always lies with the person who does something wrong. With the drunk driving issue, the decision to drive while drunk was solely the decision of the drunk driver. A decision to have sex is not (it takes 2 people). Therefore, it is the responsibility of the sober person to make sure consent is valid. If they have sex with a drunk person, knowing that they would not consent if they were sober then that is taking advantage of a drunk person and they are the one in the wrong here, so it's their responsibility, not the drunk person that's being taken advantage of.

"All men are rapists" is actually what patriarchy-endorsed rape culture claims.

If a woman dresses slu*ty/is promiscuous/goes drunk/etc, it is her fault she is raped. Because men supposedly can't help themselves , so if a woman is walking around naked, what else could they do, what other choice but rape them?

That's the ridiculous anti-man BS that so-called MRAs love to defend.

MRA's aren't consistant about what they believe. They call it misandry and "demonising men" whenever anyone directly suggests that all men are potential rapists but when a woman is actually raped, the often blame the victim.

You're putting the test in the wrong place. I would say: "There are no steps that a reasonable person could take to ascertain the existence of consent where the other person was unconscious (for any reason)."

The difference is subtle, perhaps, but it's important. If we create categorical limits to consent, then what does that imply about the person who falls outside those limits. What if the person isn't unconscious, is capable of walking, and can speak. Does that mean that they are not drunk enough to vitiate consent? Have we exempted a person from the obligation to verify consent because the other person is responsive?

^Not necessarily, but the fact that the any given step is quantitative doesn't mean that the ends of the spectrum can't be qualitatively separated.

Would you say, "There are no steps that a reasonable person could take to ascertain the existence of consent where the other person was 14." To me, the issue isn't whether or not the drunk person or the 14 year old 'wants it,' it's whether they're capable of making an informed decision based on their inebriation or their youth. Neither one is capable, in that condition, of understanding what they're getting into.

I'm willing to give a sober(ish) person the benefit of the doubt if the drunk person was speaking clearly enough to be understood, walking, and getting all over the more sober person; we can cross that fuzzy bridge when we come to it. Right now, a lot of people (particularly teens) think that 'consent' means 'the absence of 'no,'' and I would be happy if that's not the case in 5 or 10 years.

That's not true in the law. One of the legal maxims in statutory interpretation is expressio unius exclusio alterus est--the expression of one thing means the exclusion of others. So if I say, no one under the age of 14 can consent, I am saying by implication that everyone over that age can consent. If I say no one who is unconscious can consent, then I am saying by implication that everyone who is conscious can.

So unless we can be absolutely sure that our statements about who cannot consent are complete, we run the risk that an accused can stand up and say, "this person wasn't on any of the lists of people who aren't competent to consent, therefore I assumed that consent was present."

By putting the burden on the accused to prove affirmatively that consent was present, we ensure that the accused cannot escape that burden through poor drafting.



You are conflating an objective test and a subjective test. Age is objective, you are either over 14 or you're not, and you can prove it with your date of birth. The capacity to make an informed decision is subjective. There is no objective criterion on which I can determine whether a person has drunk too much or too little, or whether they're a little drunk or a lot drunk, and most importantly whether they are in possession of sufficient awareness to make an informed consent.

So these two tests need to be separated. Determining whether or not the person you want to sleep with is over the age of consent or not, should be a no brainer. It is not hard to ask, "How old are you?"

But determining whether or not the person you want to sleep with is too drunk to consent is not easy, and so it must be made perfectly clear that in court, the absence of "No" is not enough to discharge the burden of proof.



There is no "benefit of the doubt" in proving consent. The burden lies on the accused to prove it on the balance of probabilities. The first question has to be, "What steps did you take to make sure that you had the person's consent?" There has to be affirmative action on the part of the accused, not passivity on the part of the other person.

^at this point, I'm not talking about law, though. I'm actually fairly satisfied with the law, as it stands; what I want to work on is culture, and I'll start with a cultural shift from looking for a 'lack of no' to determine consent to 'the presence of a coherent yes, and the capability to say that yes with understanding.' And I'm willing, on a cultural level, to start with the relatively unambiguous, relatively objective question of whether or not the person is unconscious or too drunk to walk or speak coherently.

What has been on the back of my mind this whole time is that, even after the Steubenville rapists were convicted, their fellow classmates were tweeting things like, 'well, it's not like it was really rape; it's not like she said, 'No.'' It's even possible that the actual rapists didn't understand that what they were doing was illegal, though they should have known that it was profoundly immoral. I want to change that perception in people, particularly teenagers.

I still think you're putting the emphasis in the wrong place. If you going to create a culture of responsible sexual behavior, I think it has to start from, "You've got to ask, first."

The unconscious person, and the person too drunk to speak coherently or walk are not typical victims of sexual assault. (Steubenville notwithstanding). Most sexual assaults happen when "yes" turns into "no," or when "yes," to one thing is assumed to mean, "yes," to everything. These are people who are unconscious or incoherent.

^well, yes: you have to ask. But if a person is incapable of responding, the lack of a no does not imply consent. For that matter, the lack of a no does not imply consent at any point.

I honestly don't know the numbers wrt. degree of inebriation and at what point rapes occurr; I know that a 'typical' rape involves alcohol and someone you know, but other than that not much. I do want to stop hearing the terms 'rape-rape' and 'grey rape,' though.