Sex When Drunk – A Moral Dilemma

Here’s a very quick moral dilemma. I’d be interested to hear what people think about this situation.

Let’s assume that in the absence of previously established consent (as, for example, might exist between a married couple), it’s morally wrong to have sex with somebody if they’ve ingested some X  amount of alcohol (because it undermines their ability to give informed consent). For the purposes of this dilemma, it doesn’t matter what this amount is – just that there is some amount.

Okay, so this is the twist. Suppose somebody says this to you:

I want to want to have sex with you, but I never want sex unless I’m high or drunk. I can’t relax and I don’t enjoy it. But look, I’ll start drinking, and hopefully there will come a point where my inhibitions are sufficiently lowered and I’m relaxed enough so that we can go ahead. But realize I’m not consenting right now to have sex with you later, I’m simply telling you that I’m making the choice to drink in the hope that I will come to want sex later on. If that happens, I’ll let you know, but it might not.

This person then starts drinking, ingests some X + 1 amount of alcohol (i.e., past the point at which under normal circumstances you would consider it wrong to have sex with them), and then tells you they are ready to have sex with you.

We need to get clear about a few things before posing the (obvious) question.

First, this person is not approaching unconsciousness, they are able to reflect reasonably cogently on their desire to have sex with you, but it’s counterfactually true that in the absence of the alcohol, they would not have consented, and also that this would be true of some non-trivial percentage of other people who had drunk this much, even in the absence of the particular psychological dynamic that exists here. (I realize that this stipulation might conflict with the claim that it doesn’t matter for the purposes of this dilemma at what point alcohol undermines the ability to consent. If you think this happens when somebody approaches unconsciousness, then just assume it’s been stipulated that it occurs earlier than that.)

Second, this person would deny that they are psychologically vulnerable. They would be offended if anybody suggested that they were being taken advantage of just because they never want sex while sober. They know their own mind – they want to want to have sex.

Third, you have no particular reason to think they will come to regret any sexual encounter that takes place. They might, but they might not.

So the question is:

In this situation, would it be wrong to go ahead with the sexual encounter, and if so, why?

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107 Comments.

  1. My first impression is that it previously established consent is required for this to be a moral action. If X+1 alcohol would normally render the situation immoral because it renders the person unable to provide consent, then in the scenario above no consent was ever given.

    I see no reason why our judgments about a person’s ability to give informed consent under the influence should be affected at all by the scenario given.

    Also, I think we should note that if this person had ingested X – 1 amount of alcohol and then consented to sex, then no moral quandary would exist because she still had the ability to give consent and her requirements about her inhibitions being lowered had been sufficiently met.

  2. It sounds like consenting to consent later. Feels to me like a preliminary consent that could be retracted. Better to have a YES ahead of time but this is in the grey zone between consensual non-consent, ideal consent and the lack of consent.

  3. It’s fine to have sex with that person.

    If they go to the trouble to explain all the above to you before getting drunk, they trust you, even if it’s trust at first sight.

    The worst that can happen is that they repent of it later, but that’s their problem, not yours.

  4. Man, you must be really desperate. Really, sometimes it just isn’t worth it.

  5. @Colin – I suppose the contrary intuition is that the person has consented (in advance) to the bar for consent being set lower than it would normally be set. In other words, the fact the person has stated they want to want sex, and that they intend to drink to get into that state of desire, functions to nullify the injunction that says don’t have sex with this person if they’ve consumed some X amount of alcohol.

    @Amos – Do you think “trust” at first sight is worthy of the name “trust”? Isn’t it more like blind faith – and one could argue that people should be protected against blind faith at first sight…

    @Don – Well yes, I am that desperate, but people don’t want sex with me even when they are drunk, and anyway I’m way too old for these sorts of shenanigans.

  6. I would say no. By drinking amount X they may be in a position where they change their mind about having sex but aren’t capable of making that clear. I consider that informed consent only applies to the situation when someone is able to continue to give consent, unless there is some good medical or other reason (such as the requirement of anaesthesia). There must be the ability to say the safe word (such as “no”).

  7. Jeremy:

    No, I don’t think that people should be protected against blind faith in sex.

    Most of the time when two people go to bed together, there is a lot of blind faith (and a lot of bluffing) involved. You don’t ask for references, a CV, blood tests or a close-up photo of their genital organs beforehand.

    Having sex with someone isn’t hiring a new partner for the law firm or buying a condominium. Thank Zeus.

    Most of the time, also, sex is a pleasurable experience, so, even though I’m not only over the age of consent, but also well into the age of quasi-impotence, I encourage people to get it while they can, as the song says.

  8. @Jeremy. “In other words, the fact the person has stated they want to want sex, and that they intend to drink to get into that state of desire, functions to nullify the injunction that says don’t have sex with this person if they’ve consumed some X amount of alcohol.”

    I disagree in your assessment of her statement. Since she clearly said “I’m not consenting right now to have sex later” I interpret that to mean that she denies consent until such a time that she feels comfortable providing informed consent at a later time.

    I take this to mean that at some number of drinks Y she may feel comfortable enough to engage in sex. If Y < X then there is an interval [Y, X) of drinks where she is considered capable of giving informed consent and moral sex can ensue. Outside this interval consent will not be given (=X).

    Thus I interpret her statement to be an acknowledgement that the interval [Y, X) possibly exists and with it the possibility of valid informed consent being given within that interval. Interpreting the statement as increasing the value of X such that X is forced to be above Y seems morally reprehensible to me.

  9. If a man intentionally intoxicates a woman in order to have sex with her, that’s rape. If she just happens to be drunk, it is not.

  10. @Colin – I notice that we seem to have turned this person into a woman, which is quite interesting, I think…. :)

    such that X is forced to be above Y seems morally reprehensible to me.

    Yes, I get that point. And my intuitions go in the same direction as yours. But…

    I don’t think this is a no-brainer. I don’t think it’s obvious that the fact that she is deliberately drinking in order to get to the point where she wants sex has no effect on X (as a matter of principle). You’re right she’s not consenting to have sex later on – she’s explicit about that. But I don’t think it’s clear she’s not consenting to allow the normal strictures surrounding informed consent to be relaxed in this situation – in other words, for X to be shifted (somewhat).

    To put this another way, I’m denying your claim – or at least challenging it – that she’s committed to the idea, or has acknowledged, that outside the interval [Y, X) consent cannot be given.

    Okay, so why am I challenging that claim? I suppose because part of the worry about alcohol is that it can lower people’s inhibitions, and affect their judgement, in a way that means they end up doing things they would not have done otherwise; and also, crucially (in this case), that these are things they would not want to think of themselves as doing – if, for example, they were asked to make a judgement in advance – even if they were aware that under the influence of alcohol they would in fact want to do them.

    This second aspect isn’t in play in this particular scenario: the person here has no problem in thinking of themselves as having sex while under the influence of alcohol – they want to want to have sex. I guess I think that this second aspect is a big enough part of the story of the malign effect of alcohol vis-a-vis informed consent – i.e., that alcohol not only results in people doing things they would not have done otherwise, but things they would not want to think of themselves as doing even if they knew that under the influence of alcohol they’d want to do them – that its absence in this case might make a difference to the positioning of X. That’s not a strong claim, but I don’t think it’s obviously nonsense.

  11. @Mark – Well, clearly it’s more complicated than that. It depends on what you mean by “intoxicated”, it depends how you think alcohol affects informed consent (obviously, if somebody is nearly unconscious, then they can’t consent, but can somebody consent if they are merely over the limit for driving, for example?), and what’s more it isn’t in the least bit clear that it is not rape just in that situation where a woman is very drunk (i.e., where she can’t give informed consent).

    Anyway, this post isn’t about whether it’s rape; it’s about whether or not it would be wrong to have sex with the person in the very precise situation described here.

  12. @Jeremy
    I also noticed that I had transformed this person into a woman halfway through my first post. Very interesting. I will continue the convention anyways to avoid confusion between the two persons involved in the scenario.

    “that alcohol not only results in people doing things they would not have done otherwise, but things they would not want to think of themselves as doing even if they knew that under the influence of alcohol they’d want to do them”

    Also very interesting. If I understand you correctly, we should consider being under the influence (such that person is still mainly cogent) to be a different state of mind with different desires perhaps personality, rather than simply an impairment of normal functions such as judgment? Correct me if I’m wrong on this reading.

    Under that assumption, yes I think you are mostly correct. Let us call these states of mind S1 (sober) and S2 (> Y drinks). If S1 consents to raising X for S2 within reason, that may be morally acceptable.

    Going back to the original proposal, however, I do not think this has been stated clearly enough to warrant calling it informed consent. As we’ve demonstrated out in our divergent readings of her statement, there is enough ambiguity present to instill reasonable doubt as to her intended meaning. As such, I think it is morally preferable to choose the interpretation that does not vary X from the socially acceptable norm.

  13. As a side dispute, I wonder what impact if any the second two caveats have on the moral decision? I think they make good clarifications but I’m not sure how their absence would change the outcome either way.

    “Second, this person would deny that they are psychologically vulnerable. They would be offended if anybody suggested that they were being taken advantage of just because they never want sex while sober. They know their own mind – they want to want to have sex.”

    To paraphrase Shaw, it is no more to the point that a drunk is happier than a sober man. In most dealings with inebriation we tend to treat such statements of confidence in their own cognitive faculties as unreliable (often because they are demonstrably false I suppose). For example, a person at 0.08 who claims he’s okay to drive home is probably wrong. Likewise, I think that statements about their state of psychological vulnerability above X drinks are suspect, and their offense at being challenged on the point seems irrelevant to me.

    “Third, you have no particular reason to think they will come to regret any sexual encounter that takes place. They might, but they might not.”

    I’m not sure what this adds to the scenario. To me, the morality of sex is built entirely around mutual consent. If party A later regrets consenting to sex with party B, then party B is not to be faulted any more or less for that regret.

    I clearly see the value of the first clarification, establishing a reasonable upper limit on X and Y, but I so far don’t see the other two as being relevant to the morality question.

  14. @Colin – Just quickly (for now) on your side dispute thing (it’s late here).

    I was once sort of involved with somebody who told me quite explicitly that if we ended up having sex with each other, it would play out that she would come to hate herself and me also. (Long story). I absolutely believed her.

    There was a *lot* of sexual tension between the two of us, and it could easily have ended up in wholly consensual sex. However, even though it would have been consensual, I think I would have been doing the wrong thing if I had allowed it to happen – or made moves to instigate it. Consent just wasn’t the only moral consideration in play. You have to worry about the consequences of your actions, and where it is predictable these are going to involve harm, you’ve got moral problems.

    That’s why I had that third bit in there.

    The other caveat. I just wanted to rule out somebody making the argument that it’s wrong to have sex with somebody who is unable to enjoy sex without the help of alcohol or drugs. I was worried that somebody might take this as a sign of some deep rooted psychological problem, which might get worse if they then had sex under the influence of alcohol.

  15. @Jeremy
    Thanks for the clarifications of the clarifications. That mostly answers my questions.

    The story you put forward had never occurred to me as a possibility so I didn’t see reason to exclude it.

    I can also see the value of narrowing the focus of the argument to the specific question as you do with the other caveat.

    Side dispute rectified.

  16. The story you put forward had never occurred to me as a possibility so I didn’t see reason to exclude it.

    I reckon that sort of situation is often in play in a lot of extra-marital affairs, etc. If you’re single, for example, and you’re pursuing a married person, and you’re trying to wear down their resistance, and you’re hopeful that eventually they’ll consent to a sexual encounter, you should know that you’re potentially completely fucking up their life. Of course, if you end up having sex with them, they share some of the responsibility for that, but you don’t escape the moral issues just because the sex itself is consensual.

  17. @Jeremy
    Last one then I go to bed. This is too much fun.

    Of course, if you end up having sex with them, they share some of the responsibility for that, but you don’t escape the moral issues just because the sex itself is consensual.

    I agree completely. However, this scenario adds in the possibility that the consent of the married person was obtained through coercion, which is a whole new can of worms and throws the validity of the consent into question.

  18. Jeremy,

    Isn’t this a case for psychological help, and maybe psychiatric help, rather than philosophy? I realise it’s fun for philosophers to invent odd metaphysical scenarios and then debate endlessly about them, but haven’t we made sufficient progress with human understanding to be a bit more practical.

    If you’re paraphrasing a real situation then the solution is to get out, or stay and push for help. But not to be dumb enough to have the sex.

    And on another point you raised about the comments: it would turn out to be a woman because you’re respondents are men. This is another problem with thought experiments. If they are not clearly defined then readers will jump to conclusions on the unexplained bits. It doesn’t do well to then try to attempt to draw some other conclusions, or even imply that it’s ‘interesting’, simply because someone fills in the details from their own POV. They naturally would in this case since the problem is framed as a personal question: “Somebody says to you…” A homosexual male might have answered from that perspective. I don’t think you can take anything from it about gender issues if it’s not set up properly as a psychology trial.

    “Let us call these states of mind S1 (sober) and S2 (> Y drinks). If S1 consents to raising X for S2 within reason, that may be morally acceptable.”

    Really? This is how you would solve a human ethics problem? There are enough variables in a human head to make this just so much navel gazing. Do you really want to frame this in terms of variables?

    Sometimes I wish there were more philosophers involved in political debate. And then other times I’m glad there aren’t.

    And philosophers wonder why some scientists are not impressed with the contribution of philosophy.

    OK, I’m not a philosopher. Maybe I’m missing the point here. Could someone tell me what it is? Is this just a philosophy experiment with an arbitrary subject matter, or is this about the morality question of whether drunk sex qualifies as rape? If the latter, does it really need to be so contrived?

    If it’s the latter then the question is really one of risk. Do you risk having what is expressed as consensual sex with someone who is drunk at the time they are drunk? You judge that on how well you know them, and on how prepared you are for it to go very wrong for you.

    And here’s some practical data: if you’re a girl and it’s a drunk guy requesting sex, you’re pretty much safe from rape claims – stake your house on it, there’s little risk. If you’re a guy and it’s a drunk girl, then you can only call it based on how well you know the girls and how often you’ve had drunk sex before. First time, new friend? The risks just went up; but it’s still your call, on the night, with that girl. Change the night and the girl and the odds change.

    All the philosophy in the world won’t answer this one – this is when philosophy should be thrown out the window. This is the practical state of sexual relations brought on by millennia of male domination and relatively recent changes to views on equality. Girls risk being raped, and guys risk being accused of rape. Girls risk being raped and the guy getting away with it, and guys risk making an innocent move and being found guilty of rape. This is the state of human interaction. If you really have to do philosophy to figure out if you should have sex in some situation then the answer is already ‘no’.

    This isn’t philosophy. Detailed ethics as a principle here is about as much use as applying the ideal gas laws to blowing up your kids party balloons. It’s not the intellectual tool for the job. You’d be better off pulling funny faces. For party balloons that is, not for offers of drunk sex – although…

    I don’t know if I’m making my point well enough, so let me point to another example: human enhancement. This has real social and psychological dilemmas associated with it. But when the debate descends to this:

    “She has both the primary actuality of rationality by virtue of her human essence, and the first potentiality of the capacity to reason. The secondary act of reasoning is what’s frustrated in her case.”

    as it does here: http://edwardfeser.blogspot.co.uk/2012/08/the-metaphysics-of-bionic-implants.html

    then you know philosophers have lost their way.

    This isn’t intended to be just more philosophy bashing, because I really do think philosophy has a place. But I just don’t see this post’s detail being it. Please set me straight if you would.

  19. I’m damn sure not going to have sex with someone who is so drunk that she can’t give informed consent!

    But there seems to be a tension between the claim that the person is 1. that drunk, and yet 2. he or she is able to think reasonably cogently on whether or not to have sex. In fact, isn’t this a semantic contradiction?

    Surely if X is able to think reasonably cogently on whether to consent to have sex with Y this semantically entails that he or she is sufficiently rational and aware of the character of what he or she is agreeing to that he/she can, indeed, give informed consent? So the scenario, as described, doesn’t seem to be coherent.

  20. @Russell – I’m not sure that is a semantic contradiction.

    Suppose, for example, a person – let’s call them Jerry – has x reasons why they don’t want to have sex. Jerry then starts drinking, and what he finds is that he’s still aware of the reasons he doesn’t want to have sex – he’s able to reflect upon them – but suddenly these reasons seem to have less motivational force. They don’t seem so important. Jerry can remember that these reasons used to have motivational significance, but now – he doesn’t really care. He’s aware that likely this is an effect of the alcohol, but that knowledge doesn’t alter the fact that he is no longer inhibited by the sorts of considerations that previously seemed important. Who cares that people are going to frown upon him having sex with this lovely goat, he’s not one to be bound by bourgeois social mores.

    In that sort of situation, I think one is able to reflect cogently, and in that sense one’s consent is informed… but is it properly informed if one isn’t able to understand the motivational force of reasons one knows one took to be significant before one started drinking? I’m not sure that this is properly informed consent (at least not in a moral sense)?

    But maybe you think this does count as properly informed consent? I’m certainly prepared to be persuaded that I need to re-label what I think is missing in this sort of situation (i.e., that it isn’t the absence of informed consent that’s morally problematic here – to the extent that one does find what I’m talking about morally problematic, of course).

  21. It is wrong because you have some sort of “nut case” on your hands. This is the last kind of person to become involved with. You would only reinforce a problem in an already damaged person. You might possibly consider advising them they need some sort of counselling or medical attention. Walk away and look elsewhere if you are that desperate.
    “Second, this person would deny that they are psychologically vulnerable. “
    Well they would, wouldn’t they?

  22. Don, I’m not sure that this person is so remote from what real, sane people can be like.

    It might be difficult to find real people who never want sex when entirely sober, while being up for it under the influence of alcohol. But isn’t it fairly common for people to feel chronically anxious and inhibited in ways that are anaphrodisiac for them, and to welcome a couple of glasses of wine to relax (and have the chance of experiencing an interest in sex)? Hey, I’ve gone through stressful periods in my life when I’ve been a bit like that myself!

    Will get back to you, Jeremy, on your comment on my comment. I’m thinking about it. At the moment, I’m inclined to say that any problem is not one of (lack of) informed consent, but perhaps that’s wrong.

  23. Sex with an effectively random person who one meets at, say, a nightclub or bar is virtually always (at least from my experience) going to count as an instance of the drunk kind of pseudo consent that Jeremy describes.
    It seems to me that for many people who go out looking for one night stands, the whole point of getting significantly drunk is that when the couple are chatting (probably slurring) in a bar, dancing in a club, or even engaging in foreplay, they have virtually no need to manage each other’s concerns or expectations and each other’s thoughts about the other’s concerns and expectations etc. This is exactly what someone looking for a one night stand wants, and exactly what alcohol provides.
    It would seem strange to me if the intercourse was considered ‘wrong’, even if only one party was drunk and had stated (when sober) their desire to get drunk and have sex.

  24. Having had a situation like this with my ex, I can maybe weigh in with a little experience here. My ex of 7 years is a very self concious individual. Their sex drive was high when we first met, after years of pent up frustration. After a short time of a very active sex life, their libido dropped immensely, to almost non-existent. Throughout years 2-7 of our relationship, it seemed the only times they were in the mood was when alcohol was involved. During the times they were sober, they wanted to have sex (or stated as such) but couldn’t get out of their head enough to want to or act on it. Once alcohol was ingested, and inhibitions were lower, then sex would occasionally be a possibility. It was understood they were not willing to have sex sober (98% of the time anyway) and though they were drikning they were not consenting to have sex merely by doing so. It was also understood that were the mood to take them, despite how drunk they were, consent was given for those times.

    If I’m reading the initial post correctly, Person A is not giving consent to sex. But they are giving the informed half of informed consent. Should they give consent to sex later, they have given you the informed half while still sober enough to make consent, even while intoxicated, informed consent.

    That being said, if it was a stranger in a night club, talking to me, I’d politely excuse myself and go my own way. While perhaps not morally wrong, and while people who need de-inhibiters deserve to enjoy sex, those of us who don’t need inhibiters also deserve to find someone who would want us without alcohol or being high or whatever. I’m not against my partner and I having a few drinks and going to bed, but it adds it’s own psychological implications and burdens if the partner we’re with will only bed us if they are not thinking fully and clearly.

  25. I’d have to go with a Sartrean approach. The drunk person has to take responsibility for his/her actions – they chose to get drunk, therefore they choose the drunken sex that may happen afterward. Of course, the other person should be (according to Sartre)acting as if it benefits all of man kind, so, we’re right back at the beginning asking ourselves “should we do this?” It’s not an action beneficial to mankind or detrimental to it, so… it doesn’t matter?

  26. This sounds like a typical outcome between men and women after a night out in a British Pub (Bar). A pre-qualification for sex after a few drinks. Cheers.

  27. Why would you want to have sex with someone so screwed up that they had to be drunk in order to have sex with you (or anyone)?

  28. Back to my earlier comment, it still doesn’t sound as if the problem is lack of informed consent. The person is thinking cogently, and has all the information. For whatever reason, it seems that it’s just their value system or desire-set, or some such thing, that’s changed. But even this was in accordance with their higher-level desires – prior to drinking, they had a higher level desire to desire to have sex (or at least a higher level desire to have a chance of desiring to have sex).

    Maybe we’d all feel iffy about this situation if it actually arose, partly because this person, as described, does seem odd and perhaps vulnerable. Maybe it would still be unconscionable for some reason to go ahead and have sex with the person. But whatever the problem might be it doesn’t seem to be lack of informed consent.

    If the person was basically drinking the alcohol just to relieve anxiety, to relax, etc., and knew they might be more open to sex as a result – and had no reason not to want that – I don’t see how there would be any unconscionability involved. That must be a common situation. I think the more troubling cases are where someone tries to seduce someone else to abandon (temporarily) a moral scruple against having sex, rather than just encouraging them to feel more relaxed, less anxious and awkward.

  29. Russell-

    “If the person was basically drinking the alcohol just to relieve anxiety, to relax, etc., and knew they might be more open to sex as a result – and had no reason not to want that – I don’t see how there would be any unconscionability involved.”

    What influenced my reply was that the person giving consent when reasonably sober would have drunk sufficient alcohol to put them past the stage at which they can give informed consent. I would say that any consent they give when sober no longer applies when they have passed that level of intoxication. My view is that in all sexual encounters things should start and continue based on on-going consent. Such on-going consent isn’t possible in this situation.

  30. I don’t think I have a problem with that, Steve. If someone drinks to the point where they are no longer thinking cogently, understanding the situation, etc., sure, that seems morally problematic. My issue with Jeremy was that that didn’t seem to be what he was really describing.

  31. All of this relates to the wider area of unconscionable agreements. If I sell you my house while you’re too drunk to think straight, I won’t be able to enforce the contract against you (at least if I know of your condition). OTOH, if you go to a house auction having had a couple of drinks to relax – otherwise you’d be too anxious or feel too awkward to bid – well that’s fine.

  32. @Russell, that is indeed the law of contracts — both unconscionability and intoxication are defenses. The circumstances are slightly different when it comes to sex, though.

    I’m going to assume that we’re talking about a woman here, but it need not be:

    Legally, it depends on how well you know her, if this is a pattern of behavior, and how much risk you’re willing to take.

    Pragmatically, it depends on how the situation makes you feel.

    Morally (and I’m not sure how you’re using that word here — are we talking about normative or descriptive morality? Personal or cultural?), I don’t see this as a problem. She consented to have sex prior to intoxication if she consents again after; that’s exactly what she did; and it’s stipulated that she was able to reason cogently. Therefore, you had consent and her boundaries had not been crossed (I can think of BDSM scenarios that would be roughly analogous to this). Your boundaries may have been, since you think she’s too drunk and the act is wrong, which gets back to the pragmatic considerations above (or personal morality, if you prefer).

    Further (and with many caveats), I think that we all bear the responsibility for our own behavior, and that includes what we do while we’re drunk.

  33. I see no problem in this
    if she has no problems why should you?

    First, she says she NEVER has sex sober so why question the fact that she wants to get a good buzz on before she does the act.

    Second, who are we to say she has a phychological problem? she knows what she wants and how she wants it. It would be wrong for us to change her or assume she has a phychological problem based on the fact that we see life differently.

    Third, she wants to get drunk. It doesnt mean you have too also.

    she’s in control, period. Maybe, the question isnt about whether you would sleep with her or not. Maybe, the question is if the male would over look everything and just show her a good time hoping he will get laid.

  34. “First, she says she NEVER has sex sober so why question the fact that she wants to get a good buzz on before she does the act.”

    Unless I am completely misunderstanding the scenario, this isn’t just a good buzz, but at least enough alcohol to reduce her to a point where she can’t even think straight enough to give continued consent. That implies a form of helplessness.

  35. @Steve – That’s not quite right.

    The scenario doesn’t stipulate the point at which informed consent is no longer possible, except to say that it’s assumed it is reached before the woman has drunk enough to be near unconsciousness (i.e., she’s still reasonably cogent).

    Russell’s point is that this is a contradiction in terms, because reasonably cogent is the measure of informed consent. If Russell is right, then I need to rework the thought experiment, because it doesn’t fly as it currently stands (I think it would be reasonably easy to rework, even if I have to drop talk of informed consent).

    However, if Russell is not right, then people are free to make their own judgement about the point at which informed consent is no longer possible – and certainly I’m not convinced this point is only reached where somebody can’t “think straight” or they are “helpless” (basically, for the reasons I give in my response to Russell).

  36. I read it as that because the intoxication level had passed X, then the ability to give informed consent had been undermined. My view is that if someone is not in a position to give informed consent (which also applies to informed non-consent), then that should take priority over any previous consent given. I take this view because it’s common to come across reasonable guidelines for sexual behaviour in which it states that consent can be withdrawn at any time.

    That’s my interpretation of the situation. Perhaps I was misreading the intention of the post. I do agree with Russell about the requirement for informed consent.

  37. In the situation as described I have no problem with someone self-medicating to achieve an end result that they cannot achieve sober. If the person is cogent enough to initiate and engage in sex then there is no reason not to, unless you have a problem with the whole scenario, but there is no reason other people (i.e. the law) should be involved at any stage.

    Due to the information received beforehand, your limit of X for this person will probably have shifted upwards somewhat to X’. So the other person may easily reach X+1 but not X’ and you’d be fine about it.

    Also, informed consent is not required for sex, simply consent. Informed consent is impossible to prove anyway. Most sex relies on implied consent rather than express consent.

  38. Yep, what we’re really talking about is the capacity to consent, and the facts stipulate that she has it. So this is where the issue of morality ends, unless we’re talking about a purely personal sense of right & wrong. If there’s any confusion about her capacity to consent, then having sex would be wrong, or at the very least, extremely risky legally.

    Also, there’s the problem of judging what someone else is experiencing. Or, in other words, how do you determine X+1? The number of drinks? Her behavior? Slurred speech? Something else? Her willingness to have sex? Because you can never know exactly what someone else is thinking or experiencing.

  39. Re:- “who are we to say she has a psychological problem?”

    Well if that is not a psychological problem then I don’t know what is. The severity of it may be open to discussion. We have a person who cannot perform their natural bodily functions without their brain being poisoned with alcohol then there is something wrong somewhere and to take advantage of that for one’s own personal enjoyment is to my mind irresponsible. What pleasure could there be in having sex with someone who is befuddled and not in their customary non poisoned state. I would ask myself what other hang ups do they have? What further damage might I be doing to an already damaged person? What am I letting myself in for?
    I follow the many arguments on this site concerning Moral philosophy although my own interest lies in ontological/epistemological issues and all that embraces. For all the fine complex arguments and deep learned thought which goes into these questions of morality I am astounded to find that what for me is a simple set of circumstances i.e. how to deal with a person who has psychological issues, is the subject of so much disagreement; so much for Morals. Firstly you do not take advantage of such a person for your own pleasure, or even what they assert, will be their pleasure. Would you have sex with a feeble minded person because they requested it? Surely not. Secondly unless you can help them to overcome, in some proper way what is an abnormality then leave them severely alone. That way seems to me to have the preferable outcome.

  40. I don’t think it’s such an abnormality. I know lots of women who are prone to drink before the first time they have sex with someone. It’s not stated as explicitly as it is in the fact pattern, but otherwise, it’s not an unusual situation.

  41. “Yep, what we’re really talking about is the capacity to consent, and the facts stipulate that she has it.”

    Not after the drinking; the facts also state that at that point the ability to give continued consent is removed.

    Having discussed this matter elsewhere (because it is a fascinating dilemma), I have come to the conclusion that my main problem is the possibility of a considerable imbalance of power. If you stay relatively sober, the other person is reliant on you to ensure that things proceed in a good way. That seems to me to require continued clear-headed communication, which clearly isn’t going to be possible.

  42. Re:- bluharmony “I know lots of women who are prone to drink before the first time they have sex with someone”

    That is interesting. About how many would that be? How did you come by that information?
    I think that prone to drink is not quite the same situation as was originally described in this blog. The woman there was unable to achieve sexual desire or wish to perform the act at any time, unless she was substantially influenced by alcohol. Prone to drink, is surely merely giving oneself the little bit of courage to do something they really want, but are understandably, for some good reason, a little hesitant. If being prone becomes an habitual practice and one is unable to perform their natural functions at any time, without being substantially drunk, then there is a real problem.

  43. @Steve: What I see in the facts is this statement: “they are able to reflect reasonably cogently on their desire to have sex with you…” I don’t think anything more is required for consent. Plus, on top of that, you have consent in advance. That’s more consent to sex than you’re ever likely to get, since typically consent to sex occurs non-verbally and frequently, after drinking.

    I don’t think there’s an imbalance of power until we get past the “reasonably cogent” stage. I also don’t think it’s relevant if the other person is sober, since immoral acts aren’t generally excused by drinking or use of drugs. Explained? Sure. Excused? No.

    What I’m wondering is how one would ever know that someone else is able to “reflect reasonably cogently” on their desire to have sex after drinking.

    @Don: Both (many) anecdotes and, um, personal experience. So my comment isn’t based on scientific studies or reliable data. I agree that the situation described in the fact pattern is different, since it’s not that they’re unable to have sex when sober, but merely feel more comfortable doing it after a few drinks, and so that’s how it generally happens.

  44. “What I’m wondering is how one would ever know that someone else is able to “reflect reasonably cogently” on their desire to have sex after drinking.”

    Indeed. Good question.

  45. @Don Bird
    i feel like we are making her think she has a psychological problem by question her own beliefs.

    She knows from the start that she is going to drink to a point were she is RELAXED enough to go along with the act. She obviously knows what she is doing. If she never has sex sober why think she is out of her mind if shes “drunk”.

  46. Sex, betrunken? » HOHE LUFT - pingback on September 1, 2012 at 5:38 am
  47. @Steve Zara
    “Unless I am completely misunderstanding the scenario, this isn’t just a good buzz, but at least enough alcohol to reduce her to a point where she can’t even think straight enough to give continued consent. That implies a form of helplessness.”

    She drinks until she is in a relaxed state. I don’t see helplessness. how can you feel helplessness when your cool and calm? maybe, she drinks to a point where she is relaxed yet, not over thinking whether its right or wrong to do what she wants.

  48. “She drinks until she is in a relaxed state. I don’t see helplessness.”

    The scenario includes that she has drunk so much that under normal circumstances one would not have have sex with her because her ability to give informed consent is undermined. To me that implies a certain degree of helplessness.

  49. I repeat here part of what Jeremy said. “I want to want to have sex with you, but I never want sex unless I’m high or drunk. I can’t relax and I don’t enjoy it. But look, I’ll start drinking, and hopefully there will come a point where my inhibitions are sufficiently lowered and I’m relaxed enough so that we can go ahead. But realize I’m not consenting right now to have sex with you later, I’m simply telling you that I’m making the choice to drink in the hope that I will come to want sex later on. If that happens, I’ll let you know, but it might not.
    This person then starts drinking, ingests some X + 1 amount of alcohol (i.e., past the point at which under normal circumstances you would consider it wrong to have sex with them), and then tells you they are ready to have sex with you”
    My advice is in essence. Leave this person severely alone. Much as you would if a feeble minded person asked for sex. Putting it crudely do not have sex with people with hang ups. Find someone who has no special issues with it all.
    Jeremy asks “In this situation, would it be wrong to go ahead with the sexual encounter, and if so, why?”
    It is wrong because one would be taking advantage of a person who has some sort of Psychophysical problem i.e. “I never want sex unless I’m high or drunk.” The word ‘High’ indicates to me they have other addictions apart from alcohol One would do no more than reinforce that problem. This is not on my part a decision made in accordance with the principles of some Moral code, I rarely if ever, make those. It seems to me just blatant common sense that is all.
    A friend of mine often quoted his own maxim “A standing prick has no conscience” It seems he was right.

  50. The post was very clearly written to not disclose gender so can people please stop injecting their gender bias into this.

    I know people who do not, and probably cannot, do karaoke unless they’ve had a certain amount to drink, should these people be avoided? Do they have, as Don puts it, psychological problems? Are they unable to make informed decisions over public singing? Should we actively stop them to protect them from themselves?

    I think we have to allow people a certain amount of autonomy over their own body and mind. When someone approaches you and says what they do in the original scenario then it’s safe to assume that your usual limit X is no longer valid and should be altered for this person accordingly.

  51. Concerning gender bias in this blog, I only understand sexual activity and all it entails from a heterosexual viewpoint. I am accordingly not qualified to speak of it from any other sexual orientation. Thus I have to speak of, and imagine, and remember, He and She, Her and Him. I and Her.

  52. Don, that’s exactly what I was getting at. The fact the encounter is sexual and the fact the two participants have gender should be completely irrelevant. It is about the interactions of adult (the only assumption I’m making here) and their competence for making decisions about their own actions and whether you are comfortable allowing them that choice as it pertains to interactions with you.

    Reading through the comments it does appear to have a ‘protect helpless women against evil male predators’ bent to it. That is completely irrelevant to the situation as described.

  53. RE:- keddaw September 2, 2012 at 7:30 am
    Yes I understand the point you are making here. I have assumed that it referred to sexual activity be it Homosexual or Heterosexual, and I was replying as a Heterosexual, although I imagine some Homosexuals may well agree with my own inclinations in this matter, Perhaps Jeremy may comment in this connection.
    I note your earlier comments “I know people who do not, and probably cannot, do karaoke unless they’ve had a certain amount to drink, should these people be avoided? Do they have, as Don puts it, psychological problems?”
    I think there is a substantial difference between doing Karaoke and having Sexual intercourse; I am reasonably well acquainted with the latter but have no acquaintance with the former. Sexual intercourse is about as close to another person as one can get. There is exchange of bodily fluids, often a cause for concern if you do not know your partner well. The emotions are highly charged and different outcomes can result from falling in love and living happily thereafter, to a mutual dislike, unhappiness, STIs, unwanted pregnancies. It is one of the four basic innate drives of most animals i.e. Feeding, Fleeing, Fighting, and F***ing. By comparison Karaoke seems pretty tame, even when it is under alcoholic influence.
    I am not much of a drinker at all; but I do know the difference between say. taking a shot of whiskey before one’s first bungee jump, and not being able to perform one’s natural functions without becoming plainly in the stages of advanced intoxication. The first is possibly a cause of amusement amongst one’s friends, the second surely a cause for concern.

  54. I’m not sure if I’m the only woman participating or not, but I stated in my first post that gender is irrelevant, and chose the male-female scenario merely for ease of writing, and because I can comment from a female point of view. Finally, it’s no secret that males are most at risk legally in situations like the one described.

  55. Since by hypothesis the drunk person in this example is still able to reflect reasonably cogently on their desire to have sex, I’m not sure whether this example captures the essential problem about consent under the influence of alcohol. Our essential concern with drunk sex is about impaired judgement I think? And the ability to reflect reasonably cogently, which the constructed example stipulates to be present, suggests that (in the hypothesised situation)) judgement has not been impaired enough to make the consent problematic.
    In this fictional example what has happened is that a person has become more relaxed, etc, in a way that affects his/her current preferences. (And the person has already informed you that s/he has a second-order preference, namely to act on preferences that have been influenced by the relaxing effects of alcohol.) Her preferences have been altered by the alcohol but not (by stipulation, in the construction of the example) her capacity to make decisions in relation to her preferences.

    The person seeking consent for sex in this example should still be very concerned to establish the authenticity of the drunk person’s consent. But since by hypothesis the drunk person’s capacity to reflect on his/her desire is still reasonably intact my gut feeling is that, in the situation specified, the concerns about the authenticity of the consent are the same as they would be if the person was entirely sober. The earlier conversation with the person might form part of the consent-seeker’s attitude to the authenticity or otherwise of the consent, so it isn’t entirely morally irrelevant. But we shouldn’t mistake the nature of the relevance of that earlier conversation. It isn’t compensating for an impaired consent-whilst-drunk, because the capacity to reflect reasonably cogently means that the drunk person isn’t relevantly impaired. If the consent-whilst-drunk *is* impaired, which it would be if the consent-giver’s judgement was impaired, i.e. if they couldn’t reflect with reasonable cogency, then the earlier conversation can do no work at all towards making that consent valid.

  56. And if you took out the stipulation that “they are able to reflect reasonably cogently on their desire to have sex with you,” then we would read the example you set up as being one in which the person’s judgement *was* impaired — so that the consent is invalid and the sex should not occur. (And this is true even if the drunk person very strongly regrets that the sex can not occur!)

  57. For me it comes down to this.

    You have established that they would be offended if you assumed they are unable to rationally evaluate the encounter and that they would not regret it later. I therefore would go through with it if I was:

    A) attracted to the individual
    B) was also not going to regret it

    The choice, since we know that the first wont regret it and is offended by pity is easy for me since the two barriers the would stop me from engaging in the act have been removed IE.

    I would feel pity for the situation given they are clearly now sober.

    AND they other party may express emotional regret or disdain toward me for having instigated the act

    If the situation is as veiwed in your question then, yes I would have sex with the person

    Otherwise, No for fear of the legal implicarions of the act, the emotinal state of the other party and my moral reputation

  58. Probably very bad form to make three posts in a row, but I’ve just realised how entirely opaque I have been in my introduction of “authentic consent,” which I take to be a rather higher standard of consent than simple “non-impaired” consent. The latter is quasi-legalistic and has to do with the existence, at the moment of consenting, of an adequate standard of rationality. It is the kind of standard that might apply in assessing a contract.
    By “authentic consent” I am thinking of something a little deeper, relevant to human relations not contract law. Very roughly, it has something to do with concepts like “level playing field,” “balance of power,” self-respect of both parties, etc. It is part of the nature of a relationship (and the gender politics of a society!) rather than the just current status (e.g. drunk or sober) of one party to the relationship. That is terribly woolly, but it is meant to suggest all of the terrain that still remains to be negotiated once you have got the purely juridical notion of consent ticked off.

  59. @Claire – I think I’m going to write another post about consent, but FWIW my idea of “informed consent” is nearer to your idea of “authentic consent”. Basically, I don’t think the existence of an “adequate standard of rationality” is the end of the story as far as consent is concerned; indeed, I think I can at least argue in favor of the proposition that it isn’t enough even for “informed consent” (albeit I accept your point about the legalistic aspect, etc).

  60. It’s called capacity to consent. Informed consent does not apply to this fact pattern, as several people (including me) point out above. Informed consent might apply if the person in question does not know what sex entails and it has not been explained to her, along with any potential risks. Whether something more is required than legal capacity to consent is a question of personal morality, which means, to each his or her own.

    But the rule is, if in doubt, don’t do it, although in this case I think you’re making the decision for the woman (or man), which is, in a sense, patronizing.

  61. LifeIsLikeABeanstalk

    The original proposition falls somewhere in between sex with no chemical qualifier and “I want to have sex with you but can never do that while I am conscious. I am going to drink until I black out and then you can take it.”

    The dividing line among respondents I see as most pronounced is not whether the proposer is a free moral actor but instead whether the one so propositioned can find a reason to buy into the proposers manipulation.

    I don’t have a strong opinion as to the legal issue – my sense is that consent was given. From a moral standpoint if I were the one on the receiving end of the proposal I would feel myself to be regarded as a replaceable component in someones pathological re-enactment of a painful past experience.

    Perhaps then, my own pre-requisite would be that I would have to agree to first drink enough to be able to fulfill my own pre-determined role in this highly stylized and rigidly structured drama.

    And so now this is beginning to sound like way too many Saturday nights from my unenlightened youth!

  62. 1/ The legal implications of this matter I am not sure about.
    2/ The common sense implications I am sure about.
    3/ The moral implications I am sure about.
    Jeremy has asked “would it be wrong to go ahead with the sexual encounter, and if so, why?”
    I am taking it that he means wrong in any way whatsoever.
    1/ Legally I am not sure, but in the event that I somehow became involved in legal proceedings as a result of what happens by agreeing to the terms of the “contract” I would not feel confident that I would emerge unscathed. This seems to me reasonable and advisable grounds for refusal.
    2/ It seems blatant common-sense not to agree with what is proposed. It is not straight forward. The person purports to have certain issues and speaks of the need to get high or substantially drunk before I could possibly become sexually involved with them. Could this be some sort of “Honey Trap”? Would I be opening myself to possible blackmail on the grounds that I got someone drunk and then took advantage of them. If you are going to have sex with someone you do not know, you want preferably, the circumstances to be as simple as possible, and that you are both in the same mind about it with no hang ups or issues. That is not always easy to ascertain. If in any doubt look elsewhere. Take advice from your reasoning mind, not your goading organ of generation.
    3/ Morally I continue to maintain that it would be wrong to take advantage of someone who obviously has a problem with normal sexual activity, The suggestion was not say “lets first have drink just to relax us” I went very much further. I for instance, who drink very little, would have to hang around for some time watching someone get steadily more and more intoxicated before they advised me whether or not we were actually going to do something. Surely anybody in their right mind with any compassion, feel for the situation, or just plain downright common sense, would tactfully retreat from this rather sordid set of circumstances.

  63. Don:

    I would follow your advice regarding the situation, as you outline in your last comment.

    However, I’m 66 and I notice that as I’ve gotten older, my ability to see sex rationally has increased.

    Am I wiser? Or has my hormone level decreased radically? Could it be that wisdom regarding sexuality is simply a lower level of hormones?

    Now, if I were 18 years old once again, I would undoubtedly accept the offer of the possibility of sex in exchange for waiting for someone to get very drunk.

    (By the way, I myself have never been a very heavy drinker, not even at age 18).

    What’s more, if my 18 year-old self were to ask my current 66 year-old self if it were a good idea to have sex in the above circumstances, I would say “go ahead”, if the woman turns you on.

    In addition, if my 33 year-old son were to ask my advice (which he rarely does), I would also say “go ahead”.

    Now, if my 61 year-old friend were to ask my advice, I’d comment: “there’s no fool like an old fool”.

    So it seems to me that charging ahead in the above situation isn’t so much morally wrong (whatever that means), but a bit foolish for anyone over a certain age.

  64. Re:- swallerstein September 3, 2012 at 8:10 pm
    Yes you put your finger on some good points here. I currently cringe at some of the decisions and judgements I made in many aspects of life as a much younger man. The advance of years does seem to confer the ability to acquire some wisdom. Think before you F***, seems to me good advice, but I appreciate that in the inflamed goading of full fledged sexual desire this may be difficult, or even dismissed as unmanly nincompoopery.
    In my days as a member of Her Majesty’s armed forces I met many men, married and unmarried who regretted the casual sex in which they had indulged. Mostly it was due to Gonorrhoea, Syphilis and the like and/or the fact that they were ashamed of being unfaithful to their loved ones, wives. Or ashamed of taking advantage of, a poverty stricken prostitute. It seemed to me that one needed to take some care in matters of that nature, not only for one’s own well being, but also for the well being of all other parties, who may be, or become involved. This I hasten to add is not a bar to sexual intercourse and one will not become sex starved by adhering to it. As I do not write under a pseudonym here I am reluctant to divulge certain personal information, and this amongst other things, includes some of my relationships be they sexual or non-sexual, with other members of the human race. The advice you give to your 18 year old self or 33 year old son is again a personal matter and I would not like to comment on the rights and wrongs of it. All I can say is my advice would be “well if you have to, be careful; but surely to goodness you can find someone equally or even more attractive, who is not hung up, and dictating the manner in which this liaison is to proceed or not proceed. To put it into modern UK parlance, Ditch the bitch.

  65. Hello Don:

    I agree with you about “thinking before you F…”, but there are some things that I had to learn from experience and I sense, perhaps mistakenly, that I’m wiser for having learned them from experience and not from a sermon from my elders.

    What’s more, having learned them from experience, I got the temptation to do them out of my system, so to speak.

    Wouldn’t it worse to spend a long old age regreting not having made “mistakes” in one’s youth instead of having made them and having to take pencillin (that’s a metaphor of sorts)?

  66. Re:- swallerstein September 4, 2012 at 4:30 pm
    Yes nothing like learning from experience. A sermon from the elders, if acted upon and followed, is rather like blind unquestioning adherence to religious precepts. On the other hand if one is going to give advice about what one should or should not do in certain circumstances one’s argument is greatly strengthened by saying, I know I have been there, such and such was my experience and I recommend/do not recommend you act along the lines I suggest. A friend of mine many years ago became infected with a venereal disease which one I forget. Antibiotics were rather limited in those days and despite all efforts to his horror, it persisted. Eventually after a term in hospital where he awoke at one time to find himself circumcised; a concoction of drugs eventually worked. A young man, he was worried as to whether he should ever marry. I hope he did, as he was at heart a very decent person. I think his story could well put many a young aspiring Lothario on caution.

  67. I don’t even think it’s debatable: sex with this person is always unethical, no matter what. The entire setup creates an unsolvable dilemma: you can only receive consent if someone isn’t incapacitated, and this person is always going to be incapacitated before trying to decide, so by definition no “deciding” is possible. You can’t have sex with a person who can never decide the matter; another scenario of this same general sort is statutory rape.

    “I want to want to have sex with you, but I never want sex unless I’m high or drunk.”

    If the above statement were rephrased, maybe things would be okay. What if the person said, I consent to have sex with you if I express this desire after I’m good and drunk? But if I don’t express that desire when drunk, then don’t do it. If you receive those permissions and instructions in advance, then you’re ok. If you don’t, then not only should you not do it, but I’m not sure I could rule out disqualifying psychological issues the way Jeremy does above. A person who can’t get clear on those things is simply not a person who is fit to make any decision about sex, ever, if we assume that having sex has to occur between people capable of giving consent.

  68. No no no. It is not ok to have sex with this person, regardless of gender. Subject person has diminished capacity to make a decision, regardless of earlier conversation or statements. No question. Moreover, the idea of having sex with this person is not attractive in the first place. Not after s/he states the only way they can engage is when intoxicated.
    Any male who thinks otherwise is likely on the edge or being a serial rapist. Lastly, intoxicated sex is largely distasteful for both parties in spite of impaired recollections.

  69. Susan and Carl appear to have either basic reading comprehension failings or have their value of X right on the limit of law. Or possibly think that sex with someone with non-perfect capacity to consent is wrong (tired people, people with a cold, stressed people, coffee drinkers etc. etc.)

    The setup is the the person goes slightly over your personal limit of what level of intoxication it is acceptable to have sex with someone at. For most people that limit is quite a bit short of the legal limit – always sensible to leave a bit of a gap before there is even a hint of sexual assault I think.

    So, for Don’s 3 points:
    1. Legally is not even remotely an issue for any value of X below the legal limit.
    2. Common sense doesn’t come into play because everyone’s value of X is different therefore, assuming X is below the legal limit, there is no common consensus to make sense of.
    3. Depending on my value of X it may be more immoral to refuse (assuming you want to up to X and the other person knows this) as you’d be hurting their feelings which may play on their original issues with having to reach X+1 to have sex in the first place.

  70. Re:-keddaw September 7
    1/ What is the legal limit you refer to here? I know what it is for driving. I know of no breathalyser test we can administer to a potential sexual partner to see if he/she is over the legal limit for agreement that sexual activity should occur.
    Suppose you have sex with the person in question. A couple of days later you are interviewed by policemen. You are advised that you had sex with a person who states He/She was drunk at the time. The police ask you if you knew he/she was drunk at the time. You reply yes, but ——. I am pretty sure you will be asked to accompany them to the police station for further questioning. It is this kind of scenario where I fear, one’s security from prosecution is threatened. I see this person as potential trouble from the outset. That is why I would leave them severely alone
    2/ It is common sense not to stand on the very edge of a huge vertical drop where one false move or draught of air might topple one to certain death. Certainly many do so and survive but I speak here of individual common sense, which is not always identical from person to person. Thus what I consider common-sense in this matter under discussion may differ from others. This is obvious as there are those who disagree with me as to what is best to do. A common consensus would be something more obvious like do not handle snakes unless you are under qualified supervision, or know exactly what you are doing. I do not think that there are many who would argue with that.
    3/ I am not a moral philosopher so I am not sure when I take issue with your statement that an act can be ‘more immoral’ Are there degrees of immorality, can this somehow be measured, does it make sense to speak of Immoral, More Immoral, Most Immoral? Is an act not purely and simply Moral or Immoral? Yes I agree that one may hurt the feelings of the person in question here and if the offer of sex be declined it obviously must be done in some way which will avoid this. It surely should not be too difficult to achieve.

  71. 1. Funny, we manage to successfully prosecute people for rape, and let non rapists go, so there must be some idea of when Y is legal and when Z is not. It’s far from perfect, but I’d suggest that it’s also far from the suggested situation for most people.

    “I see this person as potential trouble from the outset. That is why I would leave them severely alone”
    See, this is the bit that’s annoying. We probably agree on what we’d do given the situation, but here you’re being incredibly judgmental on the basis that your value of X is universal – it’s not.

    2. Individual common sense is an oxymoron. Seriously.

    3. I’m a morl error theorist, so take that one however you like. But in general, what I meant was if you think having sex with someone at X+1 might cause moral harm 2 then not having sex might cause moral harm X+2. Not a proof, or necessarily even likely, simply a possibility.

  72. Re keddaw September 7
    “but here you’re being incredibly judgmental on the basis that your value of X is universal – it’s not.”

    Yes you could be right there. We often exaggerate unconsciously to make a point. Yes my value of X is not universal. That is evident when one reads the different viewpoints concerning this blog. Some agree with me some do not.

  73. Don, the legal limit (which I never covered) is not an actual amount of alcohol even in driving, it is a level of alcohol in the blood – which is itself an atrocious way to measure one’s capacity to drive*. However, many police stops are based on a person’s inability to drive while drunk rather than their drunkenness, similarly when it comes to the legal ability to consent it’s your ability to consent, as seen by a reasonable person, that determines the legality of consent, not the amount drunk.

    * All drink driving laws should be repealed and a person’s capacity for driving should be the determining factor for arrest, not their level of intoxication.

  74. They said they would let the other person know what their decision was later, in spite of knowing how alcohol affects their mind. Therefore when they did let the person know they wanted sex, they had explored that this could be a possible outcome, so yes it is acceptable to have sex with this person.

  75. Re:-keddaw September 10
    As I understand it you are making a distinction between the amount of alcohol in the blood and the amount within the person yet to be a part of the bloodstream. Alcohol will only affect our behavioural and judgemental output if it is part of the blood stream and accordingly can find its way to the brain. Alcohol has multiple effects on the neurons in the brain especially at the synapse, too complex, and unnecessary to discuss here. However one of the visible and measurable effects can be demonstrated in reaction times which are diminished. Similarly other judgemental faculties of the subject are also maladjusted.
    I agree that say two people having imbibed the same quantity of alcohol may not outwardly demonstrate the same degree of drunkenness but in both cases there will be a diminution in their reaction times, and perhaps their moral judgements, which must be important. Notwithstanding a level must be set, for we are after all looking at brain function under the influence of alcohol. Such a level must be fair, scientifically calculated, and apply to all. The outcome is that we all know or should know how much we can drink before driving.
    You say “a person’s capacity for driving should be the determining factor for arrest, not their level of intoxication.” to which I ask who or what is going to decide that, not one scientific test, not even the same person each time, but any one of hundreds of thousands police officers who happens to stop a suspect drunk driver. This is surely completely unscientific, and legally, most insecure. You mention “as seen by a reasonable person,” Where are we going to find one of those, possibly a Magistrate or High court judge, which of course brings me back to the worry of possible legal proceedings in the matter of a sex act, which is the main point of discussion here.

  76. Don, not to derail the discussion into a personal anti-anti-drink-driving laws, but a person’s size, metabolism, gender, what foods they have eaten, whether the drinks were sugary and/or fizzy, level of dehydration etc. all play into what their blood-alcohol level will be. This arbitrary limit is also a really poor guide as to how that alcohol will impact a person’s driving. The only thing you mention that is accurate is the reduction in reaction time, but many 30 year olds at twice the legal limit would still have better reaction times than the majority of sober 70 year old drivers making this a poor thing to base removing someone’s liberty on.

    Also, drink driving is not, of itself, dangerous, it is dangerous driving, or driving without due care and attention. Studies have shown that tiredness is at least as dangerous as driving (just) over the legal limit.

    I agree there are practical and legal issues with prosecuting people for driving that might be open to interpretation, but in this day of ubiquitous and intrusive cameras, surely it is not beyond the realm of possibility for a police car to follow a driver they suspect of being incapable and filming their driving to use as evidence and stopping anyone who appears to be a danger to themselves or other road users?

    To tie this back into the discussion at hand, the legal limit on consent (to anything) is adjudicated by a jury and the bar is set pretty high and is based, generally, on behaviour of the intoxicated person. The discussion here is not who we’d chuck in jail, but rather what would one do assuming someone was/appeared drunker than we’d normally allow ourselves to sleep with. If your limit of someone else’s intoxication is anywhere near the rather high legal limit then you really need to rethink your limit as you’re a danger to yourself and others.

    Assuming the level of intoxication you would permit a potential partner to have is non-zero and way below the legal limit, then the question at hand is: do you allow someone else the ability to alter your safety limits based on their superior knowledge of their own physiology and psychology? We have a limit for a stranger, hence the caveat about existing partners and pre-established consent, and that is (hopefully) going to be too low for the majority of people. Can we not alter this based on new information, or are we so set in our ways that we don’t allow exceptions?

  77. Re keddaw:-
    If one refused to have sex with another who was a little intoxicated then I guess one could well deprive oneself of much good sex. However the situation posited in this case is a considerably different. You constantly mention a legal limit in this connection I know of none so far as sex goes, and we certainly do not carry breathalysers around with us to use in such circumstances. Each needs to make a judgement here in the light of the conditions laid down by Jeremy Stangroom. I have explained in the past at some length why I would personally not become involved with the person described. Several people agree with me, several do not. I am not looking at legal/moral rights and wrongs here just for me, and probably the other person what I think would be best to do, which in my case is decline the offer. Were the other person an old friend someone I knew very well my decision could be different, but that is not the case as stated by Jeremy. I appreciate other viewpoints in this matter, and would be most reluctant to intervene, or force my own ideas on to another person who had other ideas. Given the opportunity I would express my own views and leave it at that. We are not considering a potential case of say, murder.
    I am tempted to ramble on again about drink driving but I do not envisage we will make much progress here, and in any case it is somewhat beside the point, we have been asked to consider.

  78. Wow. So many other people easier to have sex with. Sounds like she has too much baggage. Not worth it, move along. Why would you want to have a sexual relationship or encounter with someone so out of touch with her own sexuality that she has to drink to relax? It just oozes issues.

  79. I’m one of those people who can only have sex while high and I think that it’s cool to have sex with a drunk person. I mean if the person was drinking for the aim of having sex with you then it is only fair that you sleep with them when they are ready, right?

  80. I won’t address the question directly. What I will say is that I think it would be a great injustice to convict someone of rape for having sex under these circumstances.

  81. Debattenschau 25. September 2012 | Debattenprofis - pingback on September 25, 2012 at 8:39 am
  82. Maybe I’m completely wrong but in the given situation: didn’t the person start to drink alcohol with a goal, namely to get relaxed so he/she maybe wants to have sex lateron (as he/she doesn’t enjoy sex when sober) ?
    So I’m no expert in theories of decision-making but I’d lean towards the opinion that the person made a (conscious) decision to start drinking, with full knowledge of the fact that alcohol might influence his/her ‘willingness’ to have sex.
    I think if the person ends up having sex it’s not without any consent at all. I guess it’s debatable if “performing the act” is based on full consent, but as far as I understand the case there’s some kind of decision involved (to drink alcohol, which might lead to having sex).

  83. Yes, it is fine. He/She acknowledge the fact that he/she do consciously know already that when they drink enough they will consent to having sex when they normally don’t. So if he/she already know that ahead of time and still decide to drink, he/she is agreeing to any consequences they may happen because they are taking the risk. No one is forcing he/she.

  84. More Sex When Drunk | Talking Philosophy - pingback on November 7, 2012 at 5:43 pm
  85. To the extent that alcohol impedes free will and logic, one can never truly make a freely and fully informed decision. To the extent one is impaired, one is not fully free to consent.

    If sex is nothing more than a bodily function, as defecation, then I suggest reappraising the meaning of intimacy.

  86. As a legal matter – I’d say don’t make a general law against people having sex with inebriated others, but leave it at the level of common sense guidance such as ‘if the person could not reasonably be expected to be responsible for making the decision/giving consent, or if the consent that was given previously was not intended to be an unconditional token of permission to be acted upon by the other person at any time regardless of the circumstances’. Legal documents often leave the wording vague but with an indication of the intended application, and there is a reason for this. Some situations such as the one suggested cannot be precisely legislated for.

    As a practical matter, I would avoid such ‘propositions’. More trouble than they’re worth!

  87. she has said she will make it known when the time comes therefore there is nothing wrong with making a move.

  88. It is obvious that he(the one drinking) wants to have sex but has to drink to be able to try and forget about any other “problems” he has in his life. He wants to forget that (maybe) he is married, or has a girlfriend, or maybe the girl he wants to have sex with is married or anything else that might be troubling him. But YES he does want to have the sex else he wouldn’t be talking about it while he is sober…I say go for it!! But use caution!!

  89. I’m no prude by any means but if you have to go through all of this discussion to have sex with this person you shouldn’t be having it. Sex should be fun a no brain-er between two happily consenting individuals drunk or not, all this thought means there may be a no or a regret later an that should send off some signals. Dont do it. Protect yourself and him or her from the possible consequences.

  90. It would be wrong.
    I have recently discovered this as on New Years Eve when myself and a friend were drinking, we had sex, now she was more drunk then i was, but it still happened, now things are extremely awkward, as she cannot remember how we started, she also cannot remember that she initiated it. so it can kill a friendship.
    She has said to me previously she was attracted to me, when sober and drunk.
    and she has also since said that it wasn;t the idea of us having sex together that bothered her, it was the way it went down. (her being more drunk than me)
    Therefore in my circumstance we can safely agree that although the girl was interested in having sex with me, because of the condition she was in, she is not happy about it

  91. Yes she is right sex is a natural act but not to be engaged upon casually. Her problem is not basically having had sex it is being in such an advanced state of intoxication. She is attracted to you when sober or drunk, you say, so obviously this was not a ‘one off’ event where being drunk is concerned. I do not wish to give offence, and I suppose It is none of my business, but for what it is worth I am of the opinion that she may well have a problem with alcohol consumption for which perhaps advice should be sought.

  92. No it isnt ok, in fact if you need to get a person drunk or if a petson has to be drink in order to have, perform, or enjoy sex maybe they should not do it. On the other hand I believe some people may feel more comfortable and or inclined to do things they maybe not do if they were sober. Ultimately a man who has/wants/needs consent prior to consumption is looking for trouble. Especially a person who knowingly gets someone intoxicated who really might not or doesn’t drink simply to take advantage of them.

  93. No it isnt ok, in fact if you need to get a person drunk or if a petson has to be drunk in order to have, perform, or enjoy sex maybe they should not do it. On the other hand I believe some people may feel more comfortable and or inclined to do things they maybe would not do if they were sober. Ultimately a man who has/wants/needs consent prior to consumption is looking for trouble. Especially a person who knowingly gets someone intoxicated who really might not or doesn’t drink simply to take advantage of them. Besides being intoxicated is not sexy. This is a petson who obviously needs help in the bedroom maybe they want the receiver to think it was good even if it was bad.

  94. I brought up a similar topic in another site earlier because I was curious about this myself. My husband had sex with me when I was black out drunk. He told me about it the next morning and said that I acted like I wanted to so we did it. However, I don’t remember any of it. I’m not mad at him, I was just like, “okay, then. Love you, have a nice day!” There seem to be some grey ares, like the one I experienced. Where rape may be considered “okay” in SOME VERY FEW instances. Like, in my case for example. I don’t feel violated in any way, even though I do not remember the act in question. He’s my husband, I know he wouldn’t hurt me, so it doesn’t worry me.

  95. Hi Brittany

    There is this idea that there can be on-going, established consent between couples.

    Obviously I can’t say whether or not your husband had good grounds for supposing that this is the case in your marriage, but given that what happened doesn’t worry you, it sounds like this is the case (even if he couldn’t really have known for certain until he talked to you about it).

    Basically, if you’re saying to him, for example, it’s fine if you start to have sex with me while I’m asleep, then given that you’re in an established relationship, it seems like consent is in place. (There would still be tricky issues, though – for example, if you’d gone to bed angry with each other after an argument).

  96. Brittany, you were not raped, you forgot. If there is believable evidence (your husband is not likely to lie about this, I assume) that you were acting with consideration and gave consent then … you gave consent. Not to diminish rape, obviously, but consensual sex just ain’t that important. When I take a taxi home and can’t remember it the taxi driver hasn’t robbed me, we entered into a legally binding, mutually beneficial agreement and I forgot about it.

  97. I’m not saying I was raped, I just wondered if some people might consider it that since I was passed out. My husband told me I woke up, but I don’t remember it. I’m in no way upset about this because I trust my husband. Like I said, it doesn’t worry me. The only reason I even brought this up is because I’ve been seeing all these rape culture articles that try and define rape. I was just wondering what people might consider the “grey” areas of rape. I just thought my experience might be a sort of example of that. I don’t know, I’m not trying to open a whole new can o’ worms here, I was just curious about others’ opinions on the matter. Not particularly MY situation, but others like it as well.

  98. Well, according to my criminal law professor, the scenario you described would be rape.

    But I kind of thought that guy was an idiot who couldn’t be trusted to accurately portray the law. So there you go.

  99. Brittany: Suppose you discovered that as a result of that episode you were pregnant. The only way this could have happened was for instance, that your husband had failed, for whatever reason, to attend to himself. prior to the encounter. Would you say that is rape?

  100. That’s a good question, Don. That would certainly change the way I would view it. Based on the fact that I do not want to get pregnant, I would most certainly be upset because he did not “attend to himself prior to the encounter” as you say. I would probably feel that it still wasn’t rape, but I would not be pleased by his carelessness in the matter.

  101. Feelings of romantic love are also brought on by chemical stimulation in brain.

    They also alter our behaviour.

    That behaviour is also sometimes regretted at a later date.

    Should we not have sex when in love?

  102. We should rather be discussing the morality of the person who needs to get drunk to have sex.

  103. Hi. I am posting because it seems that everyone, though they don’t all agree, answer sensibly and discuss without name calling or judging each other which is what I need right now. A few months ago, I met a guy and stood him up on our first date. He still text me a week later and one night I decided to go to a local event and he was there. I wasnt there to see him but after the event, we went to a local bar with mutual friends. While there, he asked if I wanted alcohol and I explained to him that I didnt drink often and especially didnt drink while hanging out with someone for the first time. I stated that when I drink, I let my guard down and get. flirty and act very “friendly” when normally I am not like this and that I dont want to do something I would regret. I drove him home at the end of the night and we said our goodbyes in. the driveway, after talking for a couple hours. He kissed me goodnight and. I left. The next weekend, I went to another local event with a guy friend of mine and this guy was there again. My friend ended up leaving early and I went to another local. bar with mutual friends again. While there, somebody had offered to buy mea shot but I was driving and said no. This guy offered to drive my car and said that he wouldnt drink so I started drinking. I had at least 5 shots of whiskey and. other liquor (thats what I remember). Most of the drinks were consumed towards the end of the night and close together. During the time at the bar, I didnt hold the guys hand, kiss him or at like we were together in any way. I wasnt even attracted to him in that way. When it was time to leave, the guy got into his own car with his brother who had been drinking, and I remember getting into mine. The last thing I remember is calling my friend who I originally went out with earlier bc I wanted to stay at his place. It was close to the bar and I didnt want to drive all the way home after having drank like that. My friend didnt answer and thats the last thing I remember. The next morning, I woke up and was at new guys house, undressed and groggy. He said that we had sex and that I had consented to it and that I had even said no when he asked if I wanted to use a condom. He acted like everything was normal and continued to pursue me. and be interested in being in a relationship with me. I was so confused about everything. Two weeks later I found out I am pregnant. When I told him, he acted excited though having just met me a few weeks earlier. He got mad bc I didnt want him to touch me or kiss me at all and when. he realized that we arent going to be together, he refused to help me in any way and started being very mean to me. Now we do not talk at all and he is waiting until the baby arrives to get visitation. My thing is, I never wanted a baby and it makes me sick to think about how I ened up in this situation. I hate him with everything in me and I have no feelings of love or anything else for this poor child about to be born. I dont think I should have to look at and deal with this guy for the next 18 years but am confused at what I should do. Im sorry this was so long but I wanted to make sure all the info was in here. I just need advice from someone other than people who are biased either way. …. Please help with any advice that isnt judgemental and mean. Thank you.

  104. It is difficult to give advice to someone one has never seen or with whom one has had no contact whatsoever. I am a male and can only tell you what I think I would do as a female, in similar circumstances. Sever all contact with the man in question and seek an abortion. the longer you leave this the less you will want to abort. I would also think seriously about my drinking habits especially if I decide to keep the child. If possible I would in future resolve to restrict my sexual activity to those I know well and whom I can trust. There is a lot in what you say which does elicit a judgemental reply which you do not wish to hear. You may like to consider why you are reluctant to hear such replies, is there something about yourself which you will not admit? Whatever the case I hope all turns out well for you.

  105. Amanda:

    As Don Bird says, it is difficult to give advice to someone one has never seen and surely, there are many nuances of your situation which cannot be communicated without face to face contact.

    I am male by the way.

    However, I would counsel you to get in touch as soon as possible with whatever social services exist in your country to advise and help women with undesired pregnancies.

    I don’t know what your views on abortion are, but if you are pro-life (morally opposed to abortions) the Catholic Church and other religious organizations have counselling services for women in your situation.

    If you are pro-choice (morally in favor of a woman’s right to an abortion), generally women’s groups offer free counselling services.

    There may be government social agencies which help women in your situation.

    I strongly advise you to seek professional counselling.

    In addition, I advise you to see a very good lawyer, since as far as I can see from your email, you were raped and can bring charges against the “gentleman” involved.

  106. I AM A FEMALE ALCOHOLIC. I can give you my experienced and knowledgable opinion on this matter. I’d love to read every one else’s posts but I haven’t the time nor the energy.

    The bottom line is there is no wrong or right here. Some men love a woman so much (or crave/desire her) that if she tells them when sober she’ll be up for sex when she’s drunk, (but as a lot of drinkers know, you do not have confidence if you are not drunk) then she is effectively consenting to that person having sex with her – END OF.

    However, an alcoholic (even a ‘working alcoholic’ like me), is effectively never completely sober as I drink so much at night (in excess of 20 units most nights if not 30 or 40) that you are a REALLY bad judge of character AND if you’re a nice ‘people pleasing’ alcoholic like me, that feels guilty and bad about ABSOLUTELY EVERYTHING, then you’d do something you really didn’t want to, just because you know how happy that would make that person.

    Having sex with someone when they are unconscious is disgusting and there is no excuse for this. I know it’s preferable as far as I’m concerned as I can turn into a demon in the bedroom if I’m at ‘memory loss’ drinking stage and can scratch and bite, but there’s no excuse for having sex with someone who is effectively ‘brain dead’.

    Hope this clears things up for a few of you.

    I am about to give up drinking to get my daughter back but unfortunately I cannot make this happen overnight. I am currently living in a hotel with my two dogs and I hold down a very stressful but stimulating job and I do it well. I make sure I see my daughter as much as I possibly can and try to protect from all the bad in the world in any way I can. But then Social Services go and get involved because of my psychotic ex-partner who terrorised my daughter and me for 3 months solid after I ended the relationship – brick through our window in middle of night and slashed car tyres being the last incident. I cannot put on here in public what I’d like to do to the ex-partner of mine! I now have a restraining order but he has paid others to do stuff before and I’m sure he will again. I will complete this nightmare journey and even though I upset a few people along the way, I will complete it with my head held high with a two fingered salute as all the cunts in this world who want to suck the life out of you (like a Dementor in Harry bloody Potter!).

    BTW – I woke up this morning to my phone ringing (overslept through drinking too much on tablets I take for depression) and found my knickers and tights to the right of me but still had my dress on. I have no idea who I slept with. I am staying in a hotel full of foreign men. Do not feel sorry for me as I have had this situation many times before. It’s not very nice though – the not knowing and feeling like you’ve effectively been raped. I never do anything about it, I just ‘let it go’. Like you have to with many things in life.

    Good luck with life people. Stay happy and sober, spread goodwill and you will get it back ten fold. xxx

  107. My son 18 was home at his sisters birthday get together she’s turned 20 her boss a 24 yr old comes to the get together w liquor and beer all others at place were minors threw that night she’s very aggressive grabbing a girls crotch sticking her tongue down another girls throat punching a man then asks where my sons bedroom is and goes to his room without his knowledge when he goes to bed she starts giving him a back massage which turns into sex CONSENTUAL. The next morning she’s still flirting w him he had to make her leave so he could go to work she spent the night w him then 12 hours later she’s reported my son for rape because she SAID if she was sober she wouldn’t have slept w him we’ll that was in February 9 months ago and after much court my son who has never hurt anyone was just sentenced to 14 months in PRISON BECAUSE SHE WAS DRUNK however so was he because she brought the ALCOHOL AND HE DRANK IT

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