what amount of alcohol renders the drinker incapable of giving consent to sex?
is it visibly intoxicated?
or if one observes or is informed that another has had a sip of alcohol, that other person is incapable of giving consent and the legally safe thing to do is to carefully monitor the other person for a few hours to make sure that that person does not drink any alcohol?
Moreover, at what intervals should either party ask the other whether consent is present or whether it has been withdrawn? If no objections does not equal consent and consent can be rescinded at any time, how would either party know whether consent is continuing?
Does this vary by state, or is it pretty much standardized?
According to an episode of QI that I saw recently, Herodotus tells of a decision making strategy employed by the Persians: They would deliberate and make a decision while drunk, then the next day they would do it again while sober. If the outcomes matched, they would go through with what they had decided. It the outcomes differed, they would drop it. They also did the opposite: If they first made a decision sober, they would consider it once more while drunk.
This strikes me as an extremely sensible way to go about things when you decide whether or not to have sex with someone.
As a female person, I always did think the “sex while drunk = rape” thing to be ridiculous. Currently, under the law in every state, (so far as I know), if I get drunk and drive a car, I’m responsible for the consequences, but if I have sex, I’m not? I’m sorry, that’s just unreasonable.
I would imagine that making sex while drunk illegal would affect millions of people. No idea how many, but intoxicated hookups in bars and clubs are hardly uncommon. It would make a criminal out of a large swathe of the population (for some definitions of “large swathe”).
I wonder what percentage of people has had sex with someone who is drunk (whether or not they themselves are drunk)?
And when you say not generally, do you mean not in all states, or there’s no carved out prohibition against it?
I know some if not most states have statutes decreeing that incapacitated persons are incapable of consent.
They also have statutes criminalizing the administering of intoxicants by a party that will be involved later in the evening.
But 1. is intoxication by alcohol included in incapacitation and 2. what if the drinker self-serves and imbibes by his/her own volition? Is it still a basis for rape allegations?
If I get myself falling-down drunk, does that make it ok for someone to take the money out of my wallet if the guy claims I was surely ok with it since I didn’t object much, or is it still a crime?
(The “need answer fast” comment was a joke that your insistent questioning might be due to having an inebriated acquaintance nearby. We get many questions here that one looks at in a different light if they are thought to require an immediate response.)
In the sex situation, do you have to be falling down drunk? Or is it one sip and the night’s over, nothing will be consensual?
Does a man need affirmative consent to initiate and continue? Once obtained, does he need to make sure the consent is also present and willingly given at each instance of some specific interval?
Pretending your larceny situation is perfectly analogous, if you are truly fine with that person’s taking your wallet as he picked it up, can you later say that you changed your mind as he was on his way out the door, but never openly expressed this change?
Does it hold in the legal system too?
Will a prosecution arise solely because a woman had a little to drink earlier in the evening but not so much as to amount to intoxication?
I had my annual Sexual Assault response training just last week as part of my job working with young people and learned an interesting thing regarding your question.
In my state the age of sexual consent is 18 years of age. The legal drinking age is 21. The women’s resource advocate giving the class said that because the legal drinking age is 21 that **any alcohol **would render someone under the age of 21 incapable of offering legal consent for sexual activity, even if they were over 18 and ‘of age’.
Once any amount of alcohol is imbibed consent is not legally possible for persons under 21. They fall under the ‘mentally incapacitated’ section of the laws. I looked for, but did not find a cite to support what she taught the class.
If this were enforced it would certainly put a damper on the first few years of college.
Again, I can only point to the vast majority of the world’s population not being in prison for rape. I’m not familiar with the relevant statutes, and they’ll vary by country, but given that the world over millions of people go out drinking and end up in bed together every day of the week without being hauled before a jury, I’d say that on the whole the evidence suggests not.
I’m not sure that’s good evidence of the law, though. Putting someone in jail for rape first requires that someone report it as a crime, and we already know that rape of all kinds is significantly under-reported.
It’s not like the cops show up on Sunday morning to say “We see here that you and your wife got a little tipsy at the bar last night. We’re here to make sure you didn’t have sex afterwards.”
On the other hand, if your wife calls the police and says “My husband raped me while I was drunk” it’s a totally different matter.
It’s a complicated legal question, but the basic answer is you have to be really, really drunk before there’s any chance a court will deem you to have lacked consent.
Under English law, part of the ‘act’ element of committing a sexual offence like rape is that the victim must not have consented to the act. That’s fairly intuitive. The definition of consent is that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”. Whether someone is too intoxicated to give consent is a question of whether they had the “capacity” to consent, under that definition, and it’s been a fraught question. It’s been acknowledged by the courts that the victim’s capacity to consent can evaporate well before unconsciousness occurs, but the exact point at which she’ll be deemed to have lost the capacity to consent is one that’s generally left to the jury’s common sense in the specific circumstances.
The bottom line, though, is that they’ll have to be very drunk. You have to actually lose the ability to consent. It doesn’t matter if the alcohol made you more uninhibited, or if you would never have decided to have sex with that person had you been sober; it doesn’t matter if you can hardly remember it the next day; it doesn’t matter if you sorely regret it. If you give drunken consent, that’s still consent. It’s when a court deems you to have been so intoxicated that you had actually lost the ability to choose whether to engage in sexual intercourse with someone that it’ll be deemed a sexual offence. That doesn’t mean you have to be fully unconscious, or incapable of speaking, and it’s even possible that someone could say “yes” while being in that state; but regardless, we’re talking about people who are seriously intoxicated here. The OP’s example of someone who’s had “a sip” of alcohol, or who is not even visibly intoxicated, is never going to be a legal issue.