Not surprisingly, most sexual assaults on college campuses involve intoxication. One reason is obvious: an intoxicated person is vulnerable. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on morality.
From an oversimplified moral standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus is on the impact of intoxication on a person’s ability to consent. To be a bit abstract, the philosophical concern is about consent agency, which is the capacity of the person to give consent. What counts as consent will vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree about this. However, it should suffice for the purposes of this brief essay to go with an intuitive view of consent which involves a person being able to understand the situation and consciously agree. Setting aside the complexities, I now turn to intoxication.
Intoxication is a proportional impediment to agency of consent: the drunker a person gets, the less capable they become of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree. When the person has no consent agency at all, having sex with that person would be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the matter of sorting out at what point consent agency is lost. As with all such things, there will be gray areas between paradigm cases and these areas will be the most problematic. I will get the easy paradigm cases out of the way first.
One paradigm case is when the perpetrator intentionally intoxicates victim using a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so they can take my wallet when I am unconscious, they have committed theft. This seems indisputable.
Another paradigm case is when the perpetrator is an opportunist: he does not drug his intended victim but finds someone who has become incapacitated. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out after consuming too much Gatorade and someone takes my wallet, they have committed theft. Naturally, I could be chastised for being so careless—but this would not change the crime.
A third paradigm case is when a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. Now it is time to explore the grey territory between being unimpaired and being incapacitated. Somewhere in this large territory lies the point at which a person loses their consent agency and is incapable of actual consent.
One problem with finding the boundary at which consent agency ends is that it can be reached well before a person loses the capacity to appear to consent. For example, an intoxicated woman might say “yes” to a request for sex or initiate the act and then actively participate. Despite the appearance of consent, the woman might be incapable of consent—that is, she can engage in consent behavior but has lost the capacity to consent.
This creates a moral and practical problem: how can a person tell when another is capable of consent behavior without being able to consent? This is important for the person interested in sex as well as those involved in any legal proceedings that might follow.
It might be countered that if a person can engage in consent behavior, the person still has agency of consent. That is, apparent consent is actual consent. This is appealing in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a true “yes” or merely “yes” behavior without consent. It also would provide a basis by which witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. On this view, there is a presumption that behavior indicates agency.
This view does have appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted incoherently into the drive through). When I regain consciousness and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.
It is worth noting that a decent person would certainly consider apparent intoxication and from ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would not seem to be theft. Likewise, if a someone seems drunk but making it clear they want to have sex, the decent thing is to refuse, escort them safely home and perhaps even guard them from the less virtuous if they pass out. However, if someone accedes to the request, it might seem odd to claim that rape had occurred. But some might see it, intuitively, as rape.
One might also argue that it is better to err on the side of caution and assume a person who is impaired to almost any degree has lost the capacity for consent, regardless of their behavior. But this might seem too low of a bar and there is the practical problem of recognizing low levels of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.
The last matter I will consider is when both parties are intoxicated. In some college sexual assault hearings, the man has countered by asserting that since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is sound. If sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they raped each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.
In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that makes the person accountable for their actions. As with the agency of consent, this can be impaired in varying degrees or eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability. This is one of the many reasons children should not be charged as adults—they are not adults.
Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting another person. Thus, if two people are both too intoxicated to consent, they are also too intoxicated to be culpable.
The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol. If this is the case, if people have sex while both are adequately intoxicated, they are raping each other.
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