Lmao why is almost everyone talking about the law? Morals can exist regardless of the law
YES, someone says it. I’m so tired of people bringing up laws when I’m arguing over morals. Let morals change your laws, not the other way around
I’m curious, if not from the people discussing, what kind of answer were you expecting?
Yes, this gets covered in basic mandatory reporting training. The issue with intoxication is generally the power asymmetry. If there is no asymmetry, there’s less of a problem. It isn’t a hard and fast rule though. If someone says or implies they don’t want to fuck when sober, and you both get drunk and fuck, that’s probably not great. Likewise, someone taking advantage of a body mass asymmetry to remain relatively more sober while consuming the same amount of alcohol is definitely still rape.
Basically, if only one person is drunk, there is a strong presumption of assault. If both people are drunk, there is no such presumption, and you’d generally defer to the nature of their relationship outsode of the drinking. So two complete strangers getting sloshed and fucking is typically safe. Two otherwise platonic friends doing the same thing is more of a grey area and you better be sure you are not misreading the situation. You getting drunk with a friend in the hopes they will make a poor decision they wouldn’t make while sober is rape.
What I don’t see discussed already here is that it depends on the relationship. Both of you being drunk is not the right time to decide for the first time that you want to do it, but if you’ve already made that decision and now happen to be drunk, whatever.
Consent and being drunk is not about a power imbalance, or at least not completely. It is about both parties’ capabilities to consider the consequences of their actions. Will one or both regret what they’ve done later? How would they tell, if they were either of them drunk?
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.
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.”
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.
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.
How drunk is too drunk?
This kind of situation is something that is extremely fuzzy to define, but has some easy implications for how people should be taught to handle the situation.
If you are drinking, know your judgement is impacted. The same applies for others.
If you know someone is not normally interested in you, assume they will still feel the same when they sober up and don’t try anything while they are drunk.
If you are interested in a stranger while drunk, know your judgement is impacted and you are likely to misread cues so error on the side of caution. Better to miss an opportunity than to completely misread their intentions or miss signs that they are past their ability to make decisions.
Past that, aim for obvious signs of consent because once again, you are drunk and will probably misread their nonverbal cues.
To be honest the best outcomes came from listening to good friends who recommended for or against hooking up with someone because they were not the one looking to get some.
