Sexual misconduct can occur in situations where lines become blurred due to alcohol or other drugs being abused. When someone is intoxicated it can be difficult to determine whether they are consenting to sexual behavior or if they are being taken advantage of in their compromised state. In many cases, a person may be so incapacitated by drugs or alcohol that they are not aware of what is happening to them and have not given their full consent.
Substance abuse can make the concept of consent very complicated because it can alter the mental state of both parties. There are many difficult questions to consider when alcohol or drugs are involved in a sexual encounter. How drunk is too drunk to consent to sex and how do you know when someone is too intoxicated to give consent?
There are a number of reasons why substance abuse can cause issues with consent. For one thing, when someone is very intoxicated they are less able to communicate clearly and may not be able to get their feelings about a situation understood. On the other hand, alcohol and drugs can also make people more likely to disregard messages they’re being sent and make them determined to get one thing they are focused on.
It is important for people who are intoxicated to be able to have conversations about the situation and communicate what they want or don’t want to occur. Consent means that both parties know and understand that the other person is willing to have sex. If someone is incapacitated in any way and this communication doesn’t take place then it could mean that consent was never given and sexual assault has occurred.
Too Intoxicated to Give Consent
Legally a person is considered to be unable to provide consent if they are “incapacitated” by drugs and alcohol. However, the definition of being “incapacitated” can vary depending on the circumstances and individual interpretation of what that means or looks like. In some places, someone is only legally considered incapacitated if they are completely passed out and unconscious due to their drug or alcohol use.
Some states look at the situation differently depending on whether the person is “voluntarily incapacitated” meaning that they willingly took alcohol or drugs versus whether they were unknowingly drugged. Some even require prosecution to prove that the defendant knew that the victim was incapacitated in order to consider it a crime. In many places it can be difficult to prove that someone was incapacitated if they were not completely blacked out, vomiting, or unable to walk.
These issues can be especially problematic on college campuses when many of these types of situations occur on a regular basis. The culture of the school and their interpretation of being too intoxicated can mean that colleges handle sexual assault cases very differently. Students themselves have their own different interpretation of how drunk is too drunk making it very confusing to understand what consent means.
Making Sure that Consent has Taken Place
Whenever there is some type of substance abuse involved with a partner, it can make it much harder to determine if you have consent and it can make it harder to give consent. Because the legal definition can be complicated and confusing, communication is very important in any sexual encounter involving substance use. Talking to each other is the only way to ensure that someone is not getting involved in a situation that they don’t want and don’t consent to take place.
It is important to check in with a person repeatedly if they seem very intoxicated to make sure that they are okay with what is happening and that they consent to sex. If you yourself are drunk or are on drugs, make sure to check in with yourself and how you are reacting to the situation.
Are you okay with it? Do you still want to do this? Do you need a break?
Each partner needs to ensure that the other has clearly communicated their needs and is able to give verbal consent. Even if they say yes, make sure to check in the next day and see if they feel okay about what happened. Keep communication open before and after the encounter to be a hundred percent certain that there was mutual consent.
If at any point during a situation where a person is intoxicated and there seems to be any doubt about what is going on then make sure to stop it before things go too far. If your partner seems confused or is sending mixed messages then don’t do it. Even more so if they are unable to communicate coherently or aren’t sober enough to fully understand what is going on then don’t continue.
There are many cases where someone can be intoxicated and still offer their consent but it is a good idea to be very cautious and make sure there is no doubt about the situation.