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Exploring the Risky Intersection of Intoxication and Consent
What legal pitfalls await when alcohol blurs the lines? Can one truly consent if impaired? Uncover the dangers, protect yourself, and stay out of trouble as we navigate the delicate balance of legality and liability in the realm of consent.
A very important area fraught with significant legal problems is intoxication. We all know that people have consumed alcohol—and sometimes drugs—and engaged in sexual behaviors probably since the dawn of time. It is completely socially acceptable and legal to invite someone out for a drink, meet them at a bar, and later, when you’re both feeling relaxed, engage in a mutually consensual act.
The problem lies in situations where people consume so much alcohol that they either no longer consent to sexual activity or are no longer capable of forming consent.
William: Yes, that’s correct. Under California law, there’s a point where you’re so intoxicated that you cannot consent to a sexual act. As a person, you must be cognizant of who you’re with and their condition. If you think someone is so intoxicated that they can’t realistically consent, then you don’t have consent, and you should not proceed.
It goes back to the same principle we’ve discussed in other videos: be a human being and understand where someone is coming from. I recently spoke with someone about a case where this exact situation occurred.
A man and a woman met at a bar, and both were extremely intoxicated. They went to the bathroom and had sex. Afterward, the woman’s friends noticed how drunk she was and asked why she was in the bathroom for so long. When she admitted she had sex, her friends were shocked and said she couldn’t have consented because she was too drunk. They called the police, and the man was arrested for rape.
The key takeaway here is that you can’t push boundaries. You have to understand limits. In today’s world, accusations happen quickly, and people are more empowered to speak up.
Roland: That’s absolutely true. It’s very important to understand that alcohol is no longer a simple defense. You can’t just say, “Oh, I was so drunk, therefore I’m not criminally liable.” That claim will be scrutinized in court. Only in cases where someone was so incapacitated that they couldn’t form the requisite criminal intent might the defense work—and even then, it depends heavily on the circumstances.
It’s not just alcohol; drugs, including marijuana, also play a role. Drugs often amplify the danger because their potency varies, and people don’t always understand how they’ll react. Some individuals might consume a small amount and lose the capacity to consent or act out of character.
William: Let me ask you a related question, Roland. What if two people decide to get really high and then have sex? For example, they discuss it in advance and agree, “We’re going to get blazed, and then we’ll hook up.” Is there a legal way to consent to that beforehand, shielding themselves from criminal liability?
Roland: That’s an interesting question. I’ve seen a case where a woman liked to get blackout drunk and engage in rough, almost abusive sexual behavior. She and her partner did this, but the next day, she claimed she didn’t remember consenting. Investigators showed up at his house, and she reported him for rape.
Even if there’s an agreement beforehand, consent must be ongoing. A jury might hear evidence that the couple agreed to this behavior and decide it was consensual. However, there’s always a point where someone can withdraw consent, even during an act.
William: That’s exactly the problem. Legally, the answer is likely no. If people agree to use substances that impair judgment and then engage in sexual activity, it permanently closes the door on someone’s ability to withdraw consent. The law doesn’t allow that.
Roland: Exactly. Additionally, any contract to participate in illegal activity, such as using illicit drugs, is void. The law won’t uphold an agreement based on illegal behavior.
William: That’s right. Ultimately, it’s up to a jury, and while juries can nullify laws in rare cases, it’s not something anyone should count on. Protect yourself by staying within the boundaries of legality and ensuring clear, ongoing consent in all situations.
