Charges of sex assault w/ voluntarily intoxicated victims

I read an article about a new IL law in which the fact that a victim voluntarily became intoxicated does not preclude charges of sexual assault, under the idea that the intoxicated person could not consent.

From the law itself:

“Unable to give knowing consent” also includes when the victim has taken an intoxicating substance or any controlled substance causing the victim to become unconscious of the nature of the act, and this condition was known or reasonably should have been known by the accused, but the accused did not provide or administer the intoxicating substance. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:
(1) was unconscious or asleep;
(2) was not aware, knowing, perceiving, or cognizant that the act occurred; …

How would that work? Is it limited to people who are unconscious or effectively so? What level of inquiry is a prospective sexual partner expected to make into the other’s level of intoxication? What if both parties are intoxicated?

I guess the likely answer is that these would all simply be questions of fact, and that the mere fact of a victim’s intoxication does not bar an action.

(never mind, edited post)

This looks like the relevant section, with the bolded bit being the change.

Unconscious of the nature of the act seems to be the metric. I don’t especially like the wording since I feel that severe intoxication removes the ability to consent, regardless of whether the person was passed out in a corner or was coming on to everybody in the place.

When both parties are similarly toasted, the law is often not clear. I haven’t seen I was just as drunk as you were, lady. If you charge me with rape, I’ll charge you with rape, but that argument might have legs. It would depend on the jurisdiction and on the community’s beliefs on whether men can actually be raped, whether a guy’s pecker still works when he’s drunk, and whether men can hold their alcohol better than women.

The law in many states distinguishes from “really drunk, but walking and participating in sex” from “effectively unconscious, unaware or unable to react to a sexual act.”

I’m okay with the second being the law. The first person has some culpability, if they chose to get that wasted. The second person is really unable to consent, like really really unable to consent.

And of course, sex between two people in the second condition doesn’t happen.

Thanks. I was glad to see the “unconscious”-type language in the act, but I agree as to the question of whether intoxication renders one incapable of consent.

I used to drink very heavily in college, and I’d wager that the vast majority of my sexual relations occurred w/ BOTH parties not sober - ranging to the bar/party closing beer goggles/any port in the storm on both parties’ behalf. I can think of at least a couple of instances in which I regretted my choices/actions the previous night. I am comfortable that I never forced myself on anyone, but I can imagine a partner or 2 waking up and saying, “How did I end up in bed with HIM?!”

I dislike the idea that someone might make choices - drunkenly or not, which they later regret. I hope this law as enforced does not encourage that.

They absolutely do not. They have the right to get just as 'faced as they want to get without some asshole taking advantage of them. Knowing and meaningful consent cannot be given by someone who is severely intoxicated. No, not even if they’re dancing naked on tables.

What if both parties are that intoxicated?

If I get drunk and decide to rob a store, I’m responsible for that decision/action, no?

I am in no way defending sexual predators, who intentionally over serve or roofie people.

The problem is that there is no definitive line between the two conditions, certainly not for an external observer and likely not even for the intoxicated subject. What may have the night before seemed like a willful act of someone at a moderate level of ‘chemical jubilance’ could easily be viewed in the cold light of the following morning as an unwanted encounter. ‘Consent’ is ultimately in the eye of the beholder, and the threshold of so-called ‘explicit consent’ in the context of sexual relations is an ideal rarely achieved in the actual heat of a passionate moment. The law regarding sexual assault tries, often poorly, to make that distinction but it is ultimately left up to prosecutors and juries to interpret what degree of intoxication should produce an evident lack of ability to consent.

And there is even ambiguity as to what ‘consent’ means in some situations. I once had a female friend-of-a-friend who drunkenly made an extremely aggressive pass at me to the point that, were the genders reversed it would have been considered violent sexual assault instead of the ‘funny’ (read: humiliating for both parties) incident that it was. Had I mostly soberly acceded to her demands (literally a demand to “Fuck me!”) would I have been taking advantage of her or would I have been a victim of her aggressive behavior? I would argue that she could not give ‘consent’ in her condition, but avoiding getting slapped or people having to physically restrain her would have meant having to have sex with her.

While there is certainly a legal argument to be made about the culpability of a person taking advantage of the intoxicated state of another person, there is also the pragmatic point that the law ultimately cannot protect someone from the consequences of their own action. People often make unfortunate choices that they later regret, particularly under the influence of intoxicants, and that is ultimately no one else’s’ legal responsibility to police their behavior. (Ethically, it is always good to try to guard someone from making self-destructive decisions in the heat of a drunken moment, but quite often in contradiction of the law as one associate who was arrested for ‘stealing’ the car of another intoxicated person and driving him home discovered out.)

You may believe you have “right to get just as 'faced as they want to get without some asshole taking advantage of them”, the reality is that if you get severely intoxicated in a public space without adequate protection or supervision, you are opening yourself to all kinds of exploitation regardless of legal prohibitions. We have unfortunately fostered a culture, particularly among the college set, of drinking to excess as sport with all of the concomitant violations. Nobody deserves to get raped just for getting drunk at a party but it happens because there are always opportunistic predators around, and we have created a culture where this kind of intoxication and the almost inevitable resulting assaults are so commonplace that we actually have to make specific laws about nit. n


I can’t argue with any of that, but the opportunistic predators are at fault, not their victim. Is it stupid for me to go walking alone through the bad part of town after midnight? Yup, but it’s not my fault if I get robbed, beaten, or killed. The fault rests solely on the robbers, beaters, and killers.

There actually is in the common legal definition. If you are too drunk to be aware that sex is happening to you, or too drunk to attempt to pull away, that’s fairly visible to an observer.

That’s one of the reasons that affirmative consent is being taught in colleges. A drunken person can affirmatively consent, but a person beyond the legal limit of consent can’t. They are physically incapable of doing so. That’s one of the reasons that “yes means yes” is better than “no means no”.

But it is your fault if you get drunk and offer your wallet to random strangers. I mean, they are taking advantage of you, but it’s not robbery or assault.

I think it’s immoral to have sex with someone who drunkenly comes on to you, but it’s a lesser offense than rape, IMHO.

It can be robbery, at least. Take a contract. If you’re plastered when you sign it, the courts will usually say that you’re shit outta luck. But if the other party used your drunken state to get you to sign it, then the courts will often (but not always) invalidate the agreement.

I still disagree. If they cannot meaningfully consent, then it is (or it at least can be) some form of rape.

Well put.

Clearly if it is “some asshole taking advantage of them”, i.e. initiating something entirely after someone is voluntarily inebriated, there is no consent.

But how should this work in the case of a “date”, where at least a tentative mutual interest in a sexual encounter is clear from the outset, prior to consumption of any alcohol? I mean, if I get a bit drunk under these circumstances I don’t want to give up my right to consent to sex.

I suspect that a lot of people are in the first state but wake up the next day with little or no recollection of what happened the night before and become convinced they must have been in the second state.

I’m talking about getting severely drunk. Being a little buzzed, I think, might lower your standards, but it does not remove your ability to consent.

On the whole, being a part of a couple, whether a long-term relationship or a first date, does not reduce each individual’s need to meaningfully consent.

Sure, but I think it’s worth bearing in mind that in being too strict on a consent standard, you are infringing on someone’s right to consent. It doesn’t work to just say “the stricter the better”.

Not really. All the more drunken party has to do to retain their right to consent is to not claim that it was non-consensual afterward. It might reduce the other party’s right to consent some, but I think that’s an acceptable tradeoff.

No, consent cannot be retrospective or revocable. If the other person is at risk of being guilty of sexual assault under the law until they know this, then they must surely refuse. So I have lost my right to consent.

The issue there is that a ‘drunken person’ might be appearing to consent but actually in a state of intoxication where they are not really aware of what they are consenting to. The visible signs of intoxication vary from person to person, as does the rate at which alcohol is processed by the body, and just because someone makes a verbal and apparently cogent consent doesn’t mean that they aren’t too intoxicated to remember it later or actually understand what they are doing.

The teaching of ‘affirmative consent’ methods on college campuses are one of those things that sounds obviously useful in the abstract in preventing ‘accidental’ sexual assaults that occur due to misunderstandings but I have yet to see definitive evidence that it has demonstrated efficacy in actually reducing the incidence of campus assaults. It is clear that many assaults are predatory in nature and no amount of ‘affirmative consent’ is going to prevent them, nor are laws going to be effective in reducing such assaults on intoxicated people. Nobody should have to suffer sexual assault or be held accountable for it happening to them but the reality is that preventing assaults by choosing not to be in an intoxicated condition in an unsafe public space is the most effective measure in preventing many assaults from ever taking place.


I guess you could take your chances. Or just blame the person who got plastered for your cold shower.

I do see that you’re talking about being too strict on the limitations of consent, but as I said, I’m really only talking about people who are seriously drunk.

A new law, or new social norms, isn’t going to prevent a predator from attacking, but it can help the victim afterwards. I have a friend who was raped by an ex-boyfriend in college, but due to her poor understanding of “consent” at the time, it took her a couple of years to realize that SHE WASN’T AT FAULT, HE WAS. She was sober, and he physically forced her, by the way. It was rape by any reasonable standard. But for a couple of years, she felt guilty instead of angry. That’s quite damaging.

And I do think college is a time when young adults are learning the ropes, and having a common vocabulary and common expectations about the mating dance is helpful.