On Drunken Sex

This is an interesting and thorny issue.

Just so we don’t get side-tracked here, let me say for starters that almost always I would think it wrong for a man to have sex with a very drunk woman.

But the issue of criminalising the behaviour… it’s difficult. Specifically, what’s the response to this argument:

1. A very drunk woman cannot consent to sex; therefore, if sex takes place it is rape;

However:

2. If a very drunk woman cannot consent to sex, it must also follow that a very drunk man cannot be expected to determine whether consent is real or whether it is purely alcohol fuelled. So in that sense he’s not culpable (he will genuinely believe she has consented);

Counter-argument:

3. It’s up to the man to ensure that he’s capable of determining whether consent is given; you can’t go around inadvertently raping people;

Response to counter-argument:

4. It’s up to the woman to ensure she’s capable of accurately indicating whether she’s consenting; it’s no good saying ‘Yes’, thinking you mean ‘Yes’, and it turns out when you sober up didn’t mean ‘Yes’.

Further counter-argument:

5. Surely even a drunk man will know if a woman has been drinking; that’s all he needs to know to know he must not have sex;

Further response to counter-argument:

6. Not that straightforward. For all kinds of reasons actually – not least of which there is a lot of space between tipsy (where surely consent is possible) and paralytic (where it is not).

Basically, in other words, if drink takes away the ability to consent, why does it not also take away the ability to determine whether consent has been given? And why – if it is the case – should the burden of sobriety – and thereby ensuring “real” consent – fall on the man?

Obviously, this argument only applies to a very particular situation: where two people willingly engage in drunken sex, and where consent – by the woman – would not have been given without the drink. I’m not making any claim here about whether this situation would actually result in criminal action in the UK. I suspect it’s up for grabs.

And finally – just because I’m nervous this conversation might kick off – if you’re tempted to tell me I”m a misogynist: (a) I’m not interested; and (b) I’m actually a misanthrope – I dislike both sexes equally.

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