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qooqie ,

It’s kinda murky territory, but I believe the general consensus is that once you get blackout drunk or pass out levels of drunk or noncommunicating, you can’t consent anymore.

This means it’ll happen faster to women since they are generally smaller which I think a lot of people don’t realize. Eg. “We both had 4 beers and I was fine!” Nah she isn’t the same as you.

PM_Your_Nudes_Please , (edited )

As far as legality is concerned, you need two key things to be able to give consent: Knowledge of what you’re consenting to, and then the actual consent.

The second part is very straightforward, so I’ll touch on that first. Because if someone is unconscious, they obviously can’t consent. It’s an easy argument to satisfy; If they didn’t/couldn’t say it was okay, then it wasn’t okay. Easy. They were passed out? Then they couldn’t consent.

The big reason it can get murky is because that communication can happen nonverbally, via body language and context. Maybe someone misinterprets a signal, and goes in for a kiss that the other person doesn’t want. That’s a tame example, but it gets the point across with how the actual communication could get murky. But again, this is certainly the most straightforward part of consent. Can they say yes? Did they say yes? Cool.

The tricky part is that first one: Knowledge of what they’re consenting to. It gets tricky because the line gets blurry when alcohol is involved. The most straightforward times this gets violated are when one partner is surprised by something. “Stealthing” (taking a condom off without the other person’s knowledge) is rape because it violates this first part of consent. They weren’t given sufficient knowledge of what they were consenting to, (because they believed their partner was wearing a condom) so it isn’t consensual. Everyone involved needs to be able to comprehend what is happening when it’s happening. You can be blackout drunk but still able to understand what is happening in the moment. Being blackout just means the “record” part of your brain was turned off. But you can still be awake and aware of your surroundings, even if you won’t remember any of it once you sober up.

This is why lots of rape cases get thrown out. The victim was enthusiastically consenting at the time, but doesn’t remember it because they were blacked out. They wake up the next morning and are horrified about what they participated in. If they were blackout, they may not even remember consenting at all. But if they were capable of understanding things at the time that it was happening then the first part is still (as far as the law is concerned) satisfied. The law doesn’t care if you regret it after the fact, or if you can’t remember consenting, or if you only consented because your inhibitions were lowered and you had beer goggles on. All the accused rapist has to do is prove that you were able to understand what was happening, (or at least convince the jury that you were) and that you went along with it with that knowledge. If they’re able to do that, (and if the jury isn’t biased) then they’ll be acquitted. Because as far as the law is concerned, if those two parts of consent are fulfilled, then you were able to consent.

The courts do take a lot of factors into consideration, but generally speaking, voluntary intoxication has a high threshold to meet. The victim usually needs to be passed out (or at least so drunk that they’re not capable of communicating their consent). Because the courts will go “well they knew what they were doing until they passed out, because they knew they were intoxicated.” Involuntary intoxication (like having a drink spiked) is typically a much much lower threshold. If a victim was drugged, they’ll have a much easier time proving non-consent, because courts will tend to go “well they didn’t intend to get intoxicated, so any consent they gave while intoxicated should be considered coerced.”

aksdb ,

But if you consider that both are drunk, it gets even more complicated. Sure, you can’t rely on the consent of a drunk person. But if you are also drunk, you can’t even rely on your own judgement of the situation… and you likely are not aware of that.

PM_Your_Nudes_Please ,

Well again, the only things that matter are the lack of surprises, the ability of both parties to comprehend what is happening, and the consent. It doesn’t matter if you regret the decisions later. Maybe you wake up and go “I never would’ve done that while sober” but that doesn’t retroactively remove your informed consent. You were capable of understanding it at the time, and you went along with it. That’s what matters. They don’t care about your impaired judgement for the situation, as long as you were capable of understanding what was happening.

Sticker ,

I’m sensing a vibe of male friendship here.

keepcarrot ,

Assuming they are similar levels of drunk, one party didn’t get them into that situation specifically do that without the other one’s knowledge, and they’re both sloppily initiating drunken horny on each other, then sure. But really it would be worthwhile assessing the situation afterwards to see what actual harm/trauma has happened. I say this as someone who has drunkenly initiated things and its either violated a boundary or I’ve regretted it later.

I think the idea of having consent as this hard line, unforgiveable sin thing is probably not a good way of viewing consent. It’s kinda puritanical. (e.g. most jobs are non-consensual in a puritanical sense, I would not be doing most jobs I’ve had unless I needed cash for rent/food, but we also learn to forgive people who help us get jobs we wind up hating. Also consent isn’t just for sex)

The latest episode of the podcast Multiamory, which is focused on polyamory stuff but this episode was more general, actually has a broad discussion on this if you want to check it out. I disagree with a couple of points here and there, but whatever.

balderdash9 OP ,

That does sound like an interesting discussion actually

Haui ,
@Haui@discuss.tchncs.de avatar

I like this take. Thanks for elaborating.

Pat ,

Yes and no

balderdash9 OP ,

Yeah, its seems in Canada law it depends on the circumstances. You can’t consent if you’re unconscious or if you’ve been drugged, or coerced… and, yeah, those seem to me like obvious cases of rape. But going by this article, two people being drunk doesn’t automatically negate consent so long as they’re both aware and willing.

Article Summary:

Consent is defined in the Criminal Code as “voluntary agreement of the complainant to engage in the sexual activity in question.” Janine Benedet, a law professor at the University of British Columbia’s Peter A. Allard School of Law, puts it this way: “The question is whether the person in their own mind wanted this sexual activity to take place.” According to the code, no consent is obtained when the agreement comes from someone other than the complainant, the person is incapable of consenting or is induced by the accused abusing a position of trust, power or authority. Consent also does not exist if someone “expresses, by words or conduct, a lack of agreement to engage in the activity” or if the complainant, who previously consented, expresses “a lack of agreement to continue to engage in the activity.”

In that decision, the court wrote that "when the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. “Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.”

The code says there is no consent where someone is incapable of consenting. Various factors affect an individual’s capacity to voluntarily agree to sexual activity, according to Canadian law. One factor courts sometimes consider is whether the accused was in a position of authority, said Benedet. “There are provisions in the Criminal Code that talk about consent being vitiated when someone is in a position of trust or authority,” she said. Despite the idea of a position of trust impairing the ability for there to be consent, Benedet said there continues to be debate in the case law about “what kind of relationship really puts you in a position of authority.”

Intoxication is also considered a factor that affects a complainant’s capacity to consent to sexual activity. But in practice, Benedet said, the threshold of intoxication at which point someone is deemed incapable of consent varies depending on the circumstances. Where a complainant becomes intoxicated involuntarily, for instance, by being drugged, “courts [tend] to be very generous in terms of what level of intoxication would be sufficient to amount to incapacity.” If a complainant consumes drugs or alcohol by choice, courts have “a very high threshold for incapacity, much higher than they would have applied in those involuntary intoxication cases.”

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