# If two people were drunk and had sex, are they BOTH rapists? **URL:** \ **Category:** Factual Questions\ **Created:** [May 24, 2004, 6:24am UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759 "2004-05-24T06:24:20Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Incubus](https://avatars.discourse-cdn.com/v4/letter/i/c68b51/32.png) [@Incubus](https://boards.straightdope.com/u/Incubus)\ **Post date:** [May 24, 2004, 6:24am UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/1 "2004-05-24T06:24:20Z")
If a person is under the influence of alcohol, they cannot give consent to intercourse. But what it BOTH people are under the influence? ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [May 24, 2004, 6:29am UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/2 "2004-05-24T06:29:49Z")
This is exactly why the idea that sex with a drunk person = rape has never made sense to me. If _I’m_ too drunk to be legally responsible for my actions, why isn’t _he_? I’d be interested to know if anyone accused of rape under one of these laws (which, it needs to be pointed out, are not universal) has made this argument. ---
**Author:** ![Incubus](https://avatars.discourse-cdn.com/v4/letter/i/c68b51/32.png) [@Incubus](https://boards.straightdope.com/u/Incubus)\ **Post date:** [May 24, 2004, 6:43am UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/3 "2004-05-24T06:43:11Z")
I think part of it was established as a way to combat date rape- a guy gets a girl hopelessly drunk, then puts her in a situation where she would not normally consent to sex. I can understand it in this circumstance, but if you were to say drunk=unable to consent, what the hell happens when BOTH people are drunk? does it even out? If a group of people are involved in an orgy, and ONE fella is sober, does that make he/she a serial rapist? :eek: 😕 ---
**Author:** ![scm1001](https://avatars.discourse-cdn.com/v4/letter/s/c4cdca/32.png) [@scm1001](https://boards.straightdope.com/u/scm1001)\ **Post date:** [May 24, 2004, 10:21am UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/4 "2004-05-24T10:21:27Z")
for me drunk = unable to perform thus scenario is unlikely to arise ---
**Author:** ![John\_Carter\_of\_Mars](https://avatars.discourse-cdn.com/v4/letter/j/2bfe46/32.png) [@John\_Carter\_of\_Mars](https://boards.straightdope.com/u/John_Carter_of_Mars)\ **Post date:** [May 24, 2004, 11:13am UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/5 "2004-05-24T11:13:29Z")
Why don’t we get drunk and screw I’ve got a brand new water bed Made for me and you They say you are a snuff queen Honey I don’t think that’s true Why don’t we get drunk and screw Thank you, Jimmy Buffett! People have been gettin’ drunk and messin’ around for millenia. Usually it’s VERY consentual. Other drugs are more adapted to making someone helpless than alcohol. That didn’t answer your question, but 🙂 anyway. ---
**Author:** ![LuckySevens](https://avatars.discourse-cdn.com/v4/letter/l/ad7895/32.png) [@LuckySevens](https://boards.straightdope.com/u/LuckySevens)\ **Post date:** [May 24, 2004, 11:29am UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/6 "2004-05-24T11:29:35Z")
IANAL; The guide is, if they cant consent, you cant have sex with them. They cant consent if: a) They say no, or make no suggestion of yes b) If they are incapcitated and are unable to make a decision (keep in mind, you have to be pretty drunk to have this). c) They are under a certain age. If any of those are a ‘yes’ (or all of the above), then its rape. However, if she was reasonably sober (ie the guide I use is “would she be able to buy a drink at a self respecting establishment?” if the answer is yes, then she can consent), then its not rape, and she’d have to prove she was incapacitated or whatever. Usually rape victims follow a behavioral pattern. Some dont, and there cases get acquited because its all to convienient to call rape. ---
**Author:** ![danceswithcats](https://avatars.discourse-cdn.com/v4/letter/d/9e8a1a/32.png) [@danceswithcats](https://boards.straightdope.com/u/danceswithcats)\ **Post date:** [May 24, 2004, 1:40pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/7 "2004-05-24T13:40:55Z")
Don’t you think Og invented booze so ugly people could get some? 😉 ---
**Author:** ![Mathochist](https://avatars.discourse-cdn.com/v4/letter/m/c89c15/32.png) [@Mathochist](https://boards.straightdope.com/u/Mathochist)\ **Post date:** [May 24, 2004, 4:10pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/8 "2004-05-24T16:10:23Z")
> [@Incubus](#): > > If a person is under the influence of alcohol, they cannot give consent to intercourse. But what it BOTH people are under the influence? If both people were drunk, it’s a race to the courthouse. Actually, the way things go NOWadays, if a heterosexual couple are both heavily under the influence, the man raped the woman. If a heterosexual couple of teetotallers have sex, the man raped the woman. Don’t you know yet that all hetero sex is rape? ---
**Author:** ![Horatio\_Hellpop](https://avatars.discourse-cdn.com/v4/letter/h/e5b9ba/32.png) [@Horatio\_Hellpop](https://boards.straightdope.com/u/Horatio_Hellpop)\ **Post date:** [May 24, 2004, 4:40pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/9 "2004-05-24T16:40:11Z")
> [@Mathochist](#): > > Actually, the way things go NOWadays, if a heterosexual couple are both heavily under the influence, the man raped the woman. If a heterosexual couple of teetotallers have sex, the man raped the woman. Don’t you know yet that all hetero sex is rape? You miss the point. Rape is any transaction that involves a penis. Your right hand is a _victim!_ ---
**Author:** ![SandyHook](https://avatars.discourse-cdn.com/v4/letter/s/dec6dc/32.png) [@SandyHook](https://boards.straightdope.com/u/SandyHook)\ **Post date:** [May 24, 2004, 4:47pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/10 "2004-05-24T16:47:01Z")
> [@](#): > > Your right hand is a victim! Unless, of course, you’re left handed. Or a Thlydamide (sp?) baby and routinely use your feet. ---
**Author:** ![Dag\_Otto](https://avatars.discourse-cdn.com/v4/letter/d/439d5e/32.png) [@Dag\_Otto](https://boards.straightdope.com/u/Dag_Otto)\ **Post date:** [May 24, 2004, 4:56pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/11 "2004-05-24T16:56:38Z")
I’m guessing that people who have sex while drunk end up being called ‘parents’ more often than ‘rapists’. ---
**Author:** ![Flander](https://avatars.discourse-cdn.com/v4/letter/f/8c91f0/32.png) [@Flander](https://boards.straightdope.com/u/Flander)\ **Post date:** [May 24, 2004, 5:36pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/12 "2004-05-24T17:36:15Z")
> [@SandyHook](#): > > Unless, of course, you’re left handed. Then your right hand is merely an accessory! 😛 ---
**Author:** ![olihale](https://avatars.discourse-cdn.com/v4/letter/o/858c86/32.png) [@olihale](https://boards.straightdope.com/u/olihale)\ **Post date:** [May 24, 2004, 6:25pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/13 "2004-05-24T18:25:33Z")
i think really, as alcohol lessens inhibitions and for it to be rape the rapee…is that a real word? has to be pretty much passed out…it might be hard for two passed out people to have sex. Plus most guys have trouble with the business even when they can still hold a semi coherent conversation! ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [May 24, 2004, 7:29pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/14 "2004-05-24T19:29:26Z")
If you had the right laws, and you both complained, and had a severe jerk D.A., I could imagine you BOTH getting rape convictions. Not bloodly likely, though. Wow. That would suck. ---
**Author:** ![BaldTaco](https://avatars.discourse-cdn.com/v4/letter/b/47e85d/32.png) [@BaldTaco](https://boards.straightdope.com/u/BaldTaco)\ **Post date:** [May 24, 2004, 8:10pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/15 "2004-05-24T20:10:36Z")
Followup questions: - Is the standard of “sober enough to buy a drink” a legal standard, or a personal one? - Does consent have to be verbal? - How explicit does consent have to be? (e.g. does “Ooooo, baby” qualify?) - Does active participation imply consent? - Does marriage affect how consent is applied? There must be lots of case law on this topic. It’s not exactly a rare occurrence. And for the record, I’m a guy, and I I’ve had sex several times when I was waaaaay too drunk to consent. ---
**Author:** ![UselessGit](https://avatars.discourse-cdn.com/v4/letter/u/74df32/32.png) [@UselessGit](https://boards.straightdope.com/u/UselessGit)\ **Post date:** [May 24, 2004, 8:28pm UTC](https://boards.straightdope.com/t/if-two-people-were-drunk-and-had-sex-are-they-both-rapists/246759/16 "2004-05-24T20:28:54Z")
> [@](#): > > And for the record, I’m a guy, and I I’ve had sex several times when I was waaaaay too drunk to consent. Hell, I’ve been ‘‘raped’’ by women a few times. One time I was actually mostly unconscious. Most of what I know about that incident I know from witnesses, of which there were a lot (it was in a public place on a very busy weekend, talk about degrading :o ). You don’t hear _me_ whining about it… IMHO the only time Alcohol is even a factor in a rape case is if the rapist purposefully (is that a word?) gets the victim so drunk that it can’t fight back or say no. Rape is one of the most despicable actions a man (or woman) can perform - throwing it around when people make stupid drunken mistakes is a Bad Thing.