# Non-consensual sex due to alcohol consumption **URL:** \ **Category:** Great Debates\ **Created:** [September 3, 2010, 3:27pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497 "2010-09-03T15:27:59Z")\ **Posts on this page:** 17\ **Page:** 3
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 4, 2010, 5:43am UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/41 "2010-09-04T05:43:32Z")
> [@Left\_Hand\_of\_Dorkness](#): > > > [@Diogenes\_the\_Cynic](#): > > > > Yes, this raises the question of what constitutes “incapacitation,” but that’s what juries are for. > > [Surely you’re wrong](http://en.wikipedia.org/wiki/Void_for_vagueness): that’s what laws are for. When you can’t know whether your action is illegal until you meet the 12 folks sitting in judgment, you’re no longer subject to the rule of law. The law just says “incapacitated.” Whether the alleged victim actually was incapacitated is precisely what the jury would be adjudicating. It’s not the law that she was incapacitated just because she was drunk. ---
**Author:** ![Malacandra](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Malacandra](https://boards.straightdope.com/u/Malacandra)\ **Post date:** [September 4, 2010, 4:15pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/42 "2010-09-04T16:15:45Z")
> [@Diogenes\_the\_Cynic](#): > > > [@Malacandra](#): > > > > No, I don’t believe he said anything of the sort - only that if she voluntarily gets drunk enough that her judgment is impaired, but _not_ to unconsciousness, this should not be held to invalidate her consent. > > So anything short of total unconsciousness is fair game to copulate with, no matter how incoherent or lacking in lucidity the “consent” is. Yes, that’s exactly what he and I both said. Oh wait, no we didn’t. But hey, don’t listen to us, listen to the voices in your head, Sir Whiteknight McShinyarmour. ---
**Author:** ![jordanr2](https://avatars.discourse-cdn.com/v4/letter/j/838e76/32.png) [@jordanr2](https://boards.straightdope.com/u/jordanr2)\ **Post date:** [September 4, 2010, 4:31pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/43 "2010-09-04T16:31:08Z")
> [@Diogenes\_the\_Cynic](#): > > > [@jordanr2](#): > > > > Ordinarily I don’t like hypotheticals, but this seems to demand one. Girl goes out with nothing more in mind than having a good time and getting sloshed. Girl happens to meet a guy and sleeps with him - in her drunken haze she doesn’t ask his HIV status, and she ends up HIV-positive. In a situation like this, who’s accountable? > > The slimeball that took advantage of her when she was drunk. Just so, but the logic of the post I was quoting would seem to dictate otherwise; after all, the woman had the choice not to get drunk and thereby put herself in a situation where something like this could happen. ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [September 4, 2010, 4:40pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/44 "2010-09-04T16:40:31Z")
> [@jordanr2](#): > > Just so, but the logic of the post I was quoting would seem to dictate otherwise; after all, the woman had the choice not to get drunk and thereby put herself in a situation where something like this could happen. Agreed. I think he should have disclosed his HIV status, if he knew it, but I see that as a separate issue from the drunkenness thing. It’s wrong to have sex with anyone, sober or not, when you’re aware that you’re carrying a disease and they aren’t aware. I don’t really see him as taking advantage of her when she was drunk. It’s not as though he got her really drunk and then had sex with her when she couldn’t protest. He was wrong not to reveal his HIV status before sex, but I don’t see him as a rapist. ---
**Author:** ![marshmallow](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@marshmallow](https://boards.straightdope.com/u/marshmallow)\ **Post date:** [September 4, 2010, 5:00pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/45 "2010-09-04T17:00:55Z")
> [@steronz](#): > > Now, to rehash the old argument. Drunk girls can’t consent to sex, so any guy who has sex with a drunk girl is guilty of sexual assault. Aha! say the clever people on the other side, then if two drunk people have sex they’ve both been sexually assaulted! > > It seems like a sound argument, or at least a well-accepted observation of a double standard. It’s not a double standard because the sexes are radically different in their approaches and expectations. Guys don’t chase after girls and get them drunk to go and play tiddlywinks with them. Since they are the driving actor it makes sense to blame them for this sort of shit. If there was a case where a woman aggressively pursued a man in a bar, they drove to his place, they were both too drunk to legally consent and she climbed on top and had sex with him and then it was _still_ the man’s fault then that would be a true double standard. Has that ever happened? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 4, 2010, 5:08pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/46 "2010-09-04T17:08:10Z")
> [@Malacandra](#): > > > [@Diogenes\_the\_Cynic](#): > > > > So anything short of total unconsciousness is fair game to copulate with, no matter how incoherent or lacking in lucidity the “consent” is. > > Yes, that’s exactly what he and I both said. Yes, that is exactly what you said. You both said that as long as she is not completely unconscious, any consent (or appearance of consent) should be held as valid. Are you now saying that’s NOT what you meant? If not, then what would be an example of drunken consent which should NOT be taken as valid? ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [September 4, 2010, 5:09pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/47 "2010-09-04T17:09:42Z")
> [@marshmallow](#): > > It’s not a double standard because the sexes are radically different in their approaches and expectations. Guys don’t chase after girls and get them drunk to go and play tiddlywinks with them. Since they are the driving actor it makes sense to blame them for this sort of shit. If there was a case where a woman aggressively pursued a man in a bar, they drove to his place, they were both too drunk to legally consent and she climbed on top and had sex with him and then it was _still_ the man’s fault then that would be a true double standard. Has that ever happened? But you make it sound like women are just so passive in all of it and that but for a guy chasing and persuading them, they’d never go for sex. I don’t know that women pursue men as aggressively but I do think when it comes to sex, it’s not as though a woman agrees when a man has worn her down. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 4, 2010, 5:12pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/48 "2010-09-04T17:12:04Z")
> [@jordanr2](#): > > > [@Diogenes\_the\_Cynic](#): > > > > The slimeball that took advantage of her when she was drunk. > > Just so, but the logic of the post I was quoting would seem to dictate otherwise; after all, the woman had the choice not to get drunk and thereby put herself in a situation where something like this could happen. I disagree with those who think that a woman choosing to get drunk means that she can’t be exploited or taken advantage of. ---
**Author:** ![jordanr2](https://avatars.discourse-cdn.com/v4/letter/j/838e76/32.png) [@jordanr2](https://boards.straightdope.com/u/jordanr2)\ **Post date:** [September 4, 2010, 6:28pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/49 "2010-09-04T18:28:13Z")
> [@Freudian\_Slit](#): > > > [@jordanr2](#): > > > > Just so, but the logic of the post I was quoting would seem to dictate otherwise; after all, the woman had the choice not to get drunk and thereby put herself in a situation where something like this could happen. > > Agreed. I think he should have disclosed his HIV status, if he knew it, but I see that as a separate issue from the drunkenness thing. It’s wrong to have sex with anyone, sober or not, when you’re aware that you’re carrying a disease and they aren’t aware. > > I don’t really see him as taking advantage of her when she was drunk. It’s not as though he got her really drunk and then had sex with her when she couldn’t protest. He was wrong not to reveal his HIV status before sex, but I don’t see him as a rapist. Didn’t she implicitly consent to whatever risks unprotected sex might carry? If she was capable of consenting to sex, though drunk, how was she not also capable of taking responsibility for whatever risks the situation put her in? ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [September 4, 2010, 6:37pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/50 "2010-09-04T18:37:23Z")
> [@jordanr2](#): > > Didn’t she implicitly consent to whatever risks unprotected sex might carry? If she was capable of consenting to sex, though drunk, how was she not also capable of taking responsibility for whatever risks the situation put her in? I don’t know. Haven’t some people been convicted of having sex with people without disclosing their HIV status? I’m not sure how I feel about it. I think people should disclose, but I don’t know if it should be a legal obligation. At the same time, I do agree that people should be obliged to protect themselves whether drunk or not. Not from rape, no, but if you don’t like having unprotected sex when sober, it’s not the other party’s fault if you relax your guard and have unprotected sex when drunk. ---
**Author:** ![marshmallow](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@marshmallow](https://boards.straightdope.com/u/marshmallow)\ **Post date:** [September 4, 2010, 6:46pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/51 "2010-09-04T18:46:13Z")
> [@yorick73](#): > > If someone in this state is not able to legally consent to sex then the possibility of charges being pressed will depend solely on how the woman “feels” about the encounter afterwards. Criminals don’t usually volunteer themselves to the authorities. > [@Freudian\_Slit](#): > > But you make it sound like women are just so passive in all of it and that but for a guy chasing and persuading them, they’d never go for sex. I don’t know that women pursue men as aggressively but I do think when it comes to sex, it’s not as though a woman agrees when a man has worn her down. I’m sorry for the way I made it sound. Do you have an alternate explanation? Returning to the OP: > [@steronz](#): > > Drunk girls can’t consent to sex, so any guy who has sex with a drunk girl is guilty of sexual assault. Aha! say the clever people on the other side, then if two drunk people have sex they’ve both been sexually assaulted! This may or may not happen legally now or in the future. I don’t know. IANAL. But I’ll take it seriously when men start to claim they were raped in these types of situations. Women most certainly can rape men, but it’s not when they’re crumpled in a bed and the guy is going to town. > [@jordanr2](#): > > Didn’t she implicitly consent to whatever risks unprotected sex might carry? If she was capable of consenting to sex, though drunk, how was she not also capable of taking responsibility for whatever risks the situation put her in? In that scenario the woman was stupid, the man was borderline evil. The woman had some culpability to the extent she could have infected her partner with an STD she didn’t know she had. The fact she caught HIV would be like not buckling up and then being surprised when you’re thrown 50 feet through the windshield. He was taking actions that he knew could kill someone. The moral responsibility between the two are a\* little\* different. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [September 4, 2010, 6:50pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/52 "2010-09-04T18:50:57Z")
> [@Freudian\_Slit](#): > > Haven’t some people been convicted of having sex with people without disclosing their HIV status? Yes, although convictions are rare relative to the number of incidents presumably taking place. > [@Brad Sears / HIV-AIDS Resource Center](#): > > Criminal convictions for exposing another person to HIV through sex are rare. Since the beginning of the AIDS epidemic, more than 300 people have been criminally prosecuted for exposing another person to HIV. Only a fraction of these cases involve exposure through consensual sex. (The others involve activities such as biting, scratching and spitting, or violent sex crimes such as rape or forcible sodomy.) > > Of the cases involving sex, most have been brought against female prostitutes (and not their male customers) or by military prosecutors against military personnel. Less than one-sixth of these cases have resulted in convictions, and more than half of the convictions have been against military personnel. > > While most of these prosecutions have proceeded under general criminal laws such as **attempted murder, aggravated assault with a deadly weapon, attempted manslaughter and manslaughter** , a number of states have passed specific statutes that make it a crime for a person to expose another to HIV through sexual activity. ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [September 4, 2010, 7:32pm UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/53 "2010-09-04T19:32:11Z")
> [@marshmallow](#): > > I’m sorry for the way I made it sound. Do you have an alternate explanation? Well, yeah. Even if the guy makes the first move, most of the time when a woman goes back home with the guy, she’s also pretty into sex. It’s not like she just sits there like an impenetrable fortress till the guy wears down her defenses and gets sex out of her. Women like to have sex, too, often. ---
**Author:** ![jordanr2](https://avatars.discourse-cdn.com/v4/letter/j/838e76/32.png) [@jordanr2](https://boards.straightdope.com/u/jordanr2)\ **Post date:** [September 5, 2010, 12:55am UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/54 "2010-09-05T00:55:10Z")
> [@Freudian\_Slit](#): > > > [@jordanr2](#): > > > > Didn’t she implicitly consent to whatever risks unprotected sex might carry? If she was capable of consenting to sex, though drunk, how was she not also capable of taking responsibility for whatever risks the situation put her in? > > I don’t know. Haven’t some people been convicted of having sex with people without disclosing their HIV status? I’m not sure how I feel about it. I think people should disclose, but I don’t know if it should be a legal obligation. Yeah, people have been convicted for this (well, they’ve been convicted for infecting others, which I suppose is technically different from merely exposing others). > [@](#): > > At the same time, I do agree that people should be obliged to protect themselves whether drunk or not. Not from rape, no, but if you don’t like having unprotected sex when sober, it’s not the other party’s fault if you relax your guard and have unprotected sex when drunk. Well, I’m following through on the logic of “sex like this is not non-consensual because you made the choice to get drunk in the first place.” Ending up in a situation of impaired judgment isn’t the best choice, but if the responsibility in this case has to fall on one side, I’d say it falls on the man’s. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [September 7, 2010, 2:21am UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/55 "2010-09-07T02:21:33Z")
> [@Diogenes\_the\_Cynic](#): > > > [@CandidGamera](#): > > > > My opinion is that if you make a bad decision because you, in a sound state of mind, decided to impair your own judgment - tough shit. > > So if a woman drinks until she passes out, you believe it should be legal for any and everyone who wants to to copulate with her unconscious body? Nope. As clearly illustrated in the accompanying allegorical bit. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [September 7, 2010, 2:24am UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/56 "2010-09-07T02:24:00Z")
> [@jordanr2](#): > > Ordinarily I don’t like hypotheticals, but this seems to demand one. Girl goes out with nothing more in mind than having a good time and getting sloshed. Girl happens to meet a guy and sleeps with him - in her drunken haze she doesn’t ask his HIV status, and she ends up HIV-positive. In a situation like this, who’s accountable? For which part? They’re both accountable for the sex. I certainly would argue that there’s an ethical duty to disclose STDs to a partner, so he’s on the hook for that even if she didn’t ask. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [September 7, 2010, 4:14am UTC](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497/57 "2010-09-07T04:14:41Z")
> [@steronz](#): > > First off, I understand that two lines need to be drawn. One line is when someone goes from just buzzed to “Too drunk to legally consent.” The other line is when someone is so beyond drunk that they’re essentially unconscious. For the sake of this thread, let’s look at the area between those two lines, wherever it happens to be for you. Someone is drunk beyond the point where they can legally consent to sex, but still coherent and communicating. This is the zone that I’ll hereby call “drunk.” > > Now, to rehash the old argument. Drunk girls can’t consent to sex, so any guy who has sex with a drunk girl is guilty of sexual assault. Aha! say the clever people on the other side, then if two drunk people have sex they’ve both been sexually assaulted! > > It seems like a sound argument, or at least a well-accepted observation of a double standard. > > Should we try to eliminate this double standard? If so, how do we do it without giving men a free pass to get drunk and do whatever they want? Can we codify a solution, or will this always be a case of “he said/she said” that needs to be hashed out by a jury? I don’t see the double standard. IANA lawyer, bu I understood that the law was not specific to the sex of the offender, and would apply in same sex cases as well. There are probably a lot fewer cases of women sexually assualting drunken men, but that doesn’t equate to a double standard. The problem lies in the burden of proof being placed on an actual victim, who has been a woman in the majority of cases. This makes it sound like the ‘man’ is being given the benefit of the doubt, when it is the ‘defendant’ being given the benefit of the doubt, which is the way the law is supposed to work. That doesn’t mean there isn’t a problem though. The ‘inbetween zone’ is generally a problem because it’s hard to tell what that is for each person, and how that person would be perceived by others. Considering that the evidence usually consists of the testimony of two intoxicated people, often without a record of the amount of alcohol consumed, and the timing of the consumption relative to the time of consent, and the time of the sexual act, it would have to be hashed out by a jury, or become a matter of statuatory rape. Then what would happen if the alleged victim had consumed alcohol without the accused knowing about it? I think we are better off with the imperfect system we have. I don’t know how to say something important here without drawing a lot of flack, but it seems people will perceive that a women should know that there is a danger of being raped if she voluntarily goes somewhere alone with a man while drunk, and people will assume there was some kind of tacit consent by agreeing to that situation. I’m NOT blaming the victim. I’m talking about people’s perceptions of the situation. I think that is the real problem. Victims of sexual assault are still portrayed as ‘asking for it’ even if they haven’t had a drop of alcohol. I don’t think more specific laws will change that problem. The current laws are probably specific enough, and more fine points might provide more ways to challenge the accuser’s credibility. After considering fairness and the law, I still have a feeling expressed this way: ‘If I had a daughter, I’d allow her to start dating right after she got married’. That’s because I know men can be scum, and do almost anything for sex. And for those men ‘almost’ goes out the window if they get drunk enough. I’m not that bad, and I don’t think most men are either, but that is an accurate description of too many men. I doubt enough laws can be written to change that. [Previous page](https://boards.straightdope.com/t/non-consensual-sex-due-to-alcohol-consumption/552497.md?page=2)