It’s precisely the question. If someone is too drunk to make a good decision, they’re too drunk to consent. The OP’s question is at what BAC that happens.
If they’re sober enough to make a good decision and *choose *to make a poor decision, knock your socks off.
Another consideration is that someone who is drunk is going to be more susceptible to really persistent, over-the-top verbal coercion, and unable to see through false promises. Pressuring a drunk woman into sex because she lacks the ability to resist, and her reasoning ability is impaired, and then claiming you got consent is BS, but most women aren’t going to report it as rape.
the fractions of a second delayed response behind a wheel of a multi-ton vehicle can have deadly consequences, which is why DUI/DWI is at .08. Unless you’re The Flash, a slight delay saying, “that’s far enough” to the person you just met at a bar/party isn’t going to have a significant impact.
We’re talking about adults, yes? Adults are responsible for the consequences of the decisions they make. The question is whether he or she is too drunk to make a decision. Good or bad doesn’t enter into it. Alcohol doesn’t absolve you of your poor choices. You don’t get to blame the alcohol for making out with your spouse’s friend, and you don’t get to blame it for consenting to something you really shouldn’t have, either.
The answer to the OP is “when they’re too drunk to make the decision to consent.” Unless of course you want to go around telling women when they should have sex and with whom, I don’t think you or anyone else has any firm footing to judge who is and isn’t capable of making good decisions.
That’s fine that it bugs you, but it doesn’t factor into answering the OP. He isn’t asking what shady behavior is. We already know that. The question is what is “too drunk to consent.” This question is about whether a crime is being committed, not a Miss Manners inquiry.
That’s a very legalistic way of looking at it. What makes you think the OP is looking for a legal answer and not an ethical one?
Because of the words he used…?
The question was “too drunk to consent.” Consent is a concrete, factual thing. An ethical question would be “Is it OK to have sex with someone who in consenting, but is too drunk to drive?”
If you know who you are, where you are, can control your body movements, and can speak, you can consent. It doesn’t matter how drunk you are. If you can do those things, you have the ability to give consent. What someone should do in a situation like that is a different question entirely.
What is really giving me the face is the gender implications of what I’m interpreting as your stance on this issue. If you are positing that a woman can say “let’s go upstairs” but can’t consent, then I don’t understand why the man is the responsible party. How does her state of mind remove culpability for consent, but his state doesn’t remove the culpability for persuasion? I don’t think it’s thread-hijacking to point out the logical paradox of that opinion.
“Let’s go upstairs” is not “implied consent” by the OP’s terms. It’s explicit consent, and exactly what I suggested people look for in their lovers. Gender irrelevant, but the OP framed it male/female.
The only place I really have to compare consent for sex to, in an ethical sense, is medical consent. If a drunk person wants to walk out of the ER and refuse treatment that will save his life, he can’t. A BAC isn’t required to test his capacity to consent or refuse consent. What’s required is another person’s assessment (paramedic, doctor, nurse or social worker, usually, and often as a team) that he be able to understand the consequences of his choice to leave. He has to be capable of making a good decision and be making the bad one out of informed choice, not impairment or a lack of understanding. If he can’t make a good choice (not if he doesn’t, but if he can’t) he can’t refuse consent, and they’ll treat him anyhow. That’s not a law, that’s medical ethics.
Likewise, I think if a drunk person (gender irrelevant) can’t foresee the consequences of their actions because their frontal lobes aren’t working well at the moment, they can’t ethically consent to sex. If they can, but decide they’re willing to take those consequences, screw away.
I don’t think the law has ever framed it in terms of BAC, but impairment of thinking capacity based on a reasonable person’s assessment of the situation. But if I’m wrong about that, cite away.
This is the crux of the issue. In a medical situation, it’s easy for a person to say “this is the good choice, this is the bad choice.” With sex, it’s not so clear, and in a lot of instances, it’s unethical to make that choice for another person, sobriety irrelevant. Second, surgery is something done by one person to another person. It is “performed on” a patient by a doctor. Sex is a two-way street. Contrary to all-too-popular opinion, it is not something a man “performs on” a woman.
There is no question that a person (gender irrelevant) that can’t - literally cannot - choose sex is unable to consent. That includes passed out partygoers or drugged bar patrons, for example. So let’s just set that aside as settled.
Let’s say we have a man and woman who are both drunk. They are both too drunk to have “frontal lobe function,” as you put it. Let’s also assume that they’re sober enough to be physically capable of sex. They go upstairs and bang away. They both barely remember it the next day, and they’re not even sure whose strange bed they’re in. Is it your opinion that neither was capable of consenting to sex? If so, how did it occur anyway? If not, why does it matter if one party was instead stone sober?
In my opinion, it is logically impossible for two people to be unable to consent to an action, and yet it occur anyway of their own volition. It is also nonsensical, to me, for a person’s mental abilities to hinge on the mental state of a second party. Otherwise, we have to accept “the devil made me do it” as a valid defense, so long as the great Satan is in a corporeal form that night.
I think the choice to decline sex when in doubt is infinitely more ethical than the choice to assume consent. I may be choosing for my drunk partner, but if I do, the choice I will make is that he won’t be having sex tonight (if he’s a stranger. Husband’s a different story, as I already said.) Good or bad, it’s the choice least likely to cause irreversible regret and disease.
Excellent point. But I’ll get back to it in a second.
Absolutely. Agreed.
Here I think I’d take a page out of my parenting workbook. If two children are engaging in body exploration or sex play, or two teenagers having sex, I’m not going to freak out IF they are of similar developmental ages/stages. I’m going to stop it in the case of children (not teens having sex), but I’m not going to yell at anyone, shame anyone, turn anyone into a shrink or a cop. If the two are of very different ages/stages, that’s a totally different story. Two 3 year old comparing wee-wees? This is not panic time. A 14 year old and a 3 year old engaged in sexual activity? Oh, shit.
Same with two or more drunk people. If they are at similar stages of drunkeness, then I hold them both equally ethically and legally responsible. That is, too bad, so sad if someone regrets it later, but I won’t support either one bringing charges or lawsuits against the other(s).
This, however, was not the scenario I read in the OP or was assuming in my responses.
I thought the OP set it up with an imbalance of drunkeness implicit in the question, more of the 14 year old and 3 year old dynamic. Oh, shit.
Rereading it, I see that there’s no mention if the Querent is drunk or not. I can see how it can be read as if he, too, were drunk. There’s just not enough information to know for sure.
I think the OP did frame it very much, however, as this sex being “something a man “performs on” a woman,” when he brought that “implicit consent” stuff into it. Hence my suggestion that enthusiastic consent is preferable and way more fun. Sex that is a two-way street, two equal and equally willing and active participants, instead of someone whose greatest noteworthy participation is a lack of “protest”.
I can see why I may have read more into that than the OP intended. Chalk it up to life experience clouding my reading. But does my reaction make sense with that assumption?
I don’t understand what this is saying.
What I meant by the devil comment is that to me, it doesn’t matter what the querent is. I don’t think the answer to “Is she sober enough to consent?” depends on how someone else- anyone else- is conditioned at that moment. “The devil made me do it” is a universally rejected excuse for bad choices, and I don’t think that changes just because “the devil” in this situation is a horny associate (i.e. a “corporeal devil”, so to speak).
So I wasn’t reading the OP one way or another as to the potential “assailant’s” sobriety, because to me, it doesn’t matter. If everyone is a sane adult, then they’re all responsible for their own actions, including drinking to excess and consenting to ill-advised sex. Don’t think I’m blaming victims here; I’m not. Undressing a passed-out woman is still rape because it’s not “her own action.” But if she’s standing on two feet, conversing and inviting sex, it’s her own action, and drunk or not, she owns that.
To reiterate, just because it’s a bad decision doesn’t mean it’s not a decision.
What about statutory rape? A 13-year-old can engage in voluntary actions that complete a sex act, but legally it still isn’t consent, because legally, a 13-year-old cannot consent.
For me, I know me. If I’m having sex with a stranger after one drink, something is WRONG. Because I wouldn’t - I have never had sex with someone I hadn’t been dating for at least a few weeks. So…someone (perhaps myself) slipped me a mickey. The next morning, if I wake up next to you with no undies, I’m pretty convinced it was you. It may appear to you like I’m consenting at the time - however, its going to be really difficult for you when I file a police report naming you claiming you drugged me.
(Perhaps myself … a common rape drug is just a Xanax - plus alcohol. Another is Ambien and alcohol. I know these things - does the hot to trot woman you picked up at a bar know them? Or is she drinking on a new Xanax prescription? But perhaps someone other than you - it can take a while for these things to kick in - maybe my rapist decided to move to greener pastures before “whoohooo - I’m not wearing underwear!” kicks in)
You’d file a police report if you drugged yourself and then had sex with someone? :dubious:
I think what Dangerosa is saying is that: (1) She knows herself; (2) therefore, if she woke up sans undies next to someone after only one drink, she would conclude she was drugged somehow (since she knows she would not do that of her own free will); (3) since she was drugged, she would file a police report, and finally (4) regardless of whether the drugging was due to the sex partner, a potential rapist who had moved on before the drugs kicked in, or even due to unexpected reactions to medicine she was taking - it would suck for the sex partner because they would be a likely suspect.
Thus, I think the “moral of the story” is that people should be extra cautious about having sex with someone who has been drinking, even if it is only a single drink.
That was a episode of Law & Order: SVU.
This poll was pretty straightforward, I’m not sure why hypotheticals concerning date rape drug cocktails to be thrown in.