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.

Leave a comment ?

59 Comments.

  1. Merlijn de Smit

    Very thorny! I think the key issue is 6. People have more-or-less drunken sex all the time – though usually still capable of walking, calling a taxi, etc. Then there’s the case of being raped while passed out which is pretty clearly just that (rape). The line goes somewhere in between but precisely where? One thing that complicates the issue further is that (as far as I’ve heard) black-outs really don’t “show” but afterward: someone might seem “normal drunk” (but still walking, talking, etc.) but the memories simply don’t stick.

    I’m not sure whether, outside of the very clear cases, it’s possible to come up with any demarcation between rape and drunken one-night stands (regretted or not). You’d have to look at the concrete and specific case (which is often hard enough).

  2. I appreciate your nervousness and hopefully I won’t say anything to aggravate it, but these questions always (and maybe rightly so) seem to be one-sided. I don’t say this to imply you’re a misogynist, but that the culture is (and maybe rightly so).

    As a typical (fairly) college kid in the good ol’ US of A, I know that I entered into some “relations” that if I had been sober I most likely would have avoided. Luckily, I came out of them ok, mentally and physically, but I can’t imagine that even if there had been negative consequences I would’ve considered any of the “relations” a rape type situation. Is this only because I’m a guy? If I had claimed it to be rape, I can’t imagine anyone taking me seriously.

    “But when people are incapable of making a decision then, in a civilised society, you have to be protected by the law.” In this quote, she’s obviously talking about not being able to make a decision due to a person’s decision to drink. Should drunk drivers be treated less harshly because anyone drinking can’t be expected to be accountable for their decisions while drunk?

    Thanks for the interesting post.

  3. And, of course, there is the question of why we should limit the idea of non-responsibility in drink to the issue of consent to sex. Wouldn’t it follow that a very drunk man should not be held responsible for, say, punching another man if he regretted it in the moening and is sure he would not have chosen to do it if sober?

    Allowing that women have less personal agency than men, even in very particular circs, looks unpleasantlty slippery slopish to me.

  4. Jeremy Stangroom

    Part of the problem here is that this statement:

    “But when people are incapable of making a decision then, in a civilised society, you have to be protected by the law.”

    gets us hardly anywhere, since what is up for grabs here precisely is the question of when a ‘decision’ is properly a decision.

  5. 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?

    Drink does in fact take away that ability, but generally we think inebriation can’t serve as an excuse for immoral or illegal behavior. A drunk driver can’t say he was too inebriated to see the red light. This is the way we look at inebriation across the board–it’s not an excuse for misbehavior. A person who’s drunk should do whatever a sober person should do.

    So the critical question, maybe, is about how sober people ought to regard having sex with drunk people. Should they see consensual seeming behavior in someone who is drunk as possibly non-consensual? Not sure. That does seem like rather a lot to expect.

  6. Jeremy Stangroom

    Jean

    So the critical question, maybe, is about how sober people ought to regard having sex with drunk people. Should they see consensual seeming behavior in someone who is drunk as possibly non-consensual.

    Hmmm. That’s one interesting question. But I think I could argue – “Yes, it is possible a very drunk person is not consenting, even if they seem to be consenting”, yet also think that this judgement will sometimes be too difficult to make accurately by someone who has been drinking (i.e., the person trying to work out whether there is consent).

    I don’t think the response – “Ah yes, but we don’t allow drink to excuse illegal behaviour” (i.e., getting the judgement wrong) works here, because part of what is at stake is precisely whether the behaviour should be illegal.

    On the morality question, I might be happy to concede that the man is behaving immorally if he is too drunk to properly think about consent. But then I’d also want to argue that the woman is behaving immorally if she’s too drunk to know whether she is consenting (i.e., if she seems to consent, but hasn’t actually consented).

    And obviously none of this touches on the large range of cases where there genuinely is no way of making the judgment as to whether consent is genuine or alcohol driven. (There’s a second order vagueness issue here, which means that the response – “Ah, but we shouldn’t assume consent if we can’t be sure there’s consent’ – won’t work).

  7. It doesn’t seem like rape to me. It’s drunken sex.
    It happens all the time. I don’t see why the drunk female would be less responsible than the drunk male. Everyone, male and female, is a lot less inhibited when drunk, and when anyone, male or female, drinks in excess, he or she consents to be less inhibited, which lowers the threshold for consent for the sex act in some sense. That’s the drinking in excess game, so to speak.

  8. I don’t think the response – “Ah yes, but we don’t allow drink to excuse illegal behaviour” (i.e., getting the judgement wrong) works here, because part of what is at stake is precisely whether the behaviour should be illegal.

    The point is that we do not generally have separate standards for “what you should have known” for people who have been drinking. If we did, you could just get yourself drunk, and make yourself exempt from moral and legal standards.

    I was once on a jury that convicted a man of manslaughter (it was a very complicated situation). He was drunk and so was his victim. His responsibility turned on some very subtle things he “should have known.” The judge instructed us over and over again that you can’t hide behind alcohol. What a drunk man should have known is exactly what a sober man should have known.

    That made sense to me and still does. The judge also made the point that “you take your victims as you find them.” If the victim had been sober, he might have behaved a little differently and the outcome might have been different. But tough luck for the defendant.

    In the rape case, I don’t know what to say about what a sober person should think about a woman who is drunk and acting like she wants to have sex (as appears to have been the case in the situation in question). I don’t know if he’s obliged to be an expert on her drunkenness and the way it is affecting her behavior.

  9. Jeremy Stangroom

    If we did, you could just get yourself drunk, and make yourself exempt from moral and legal standards.

    Hmmm. I’m not sure this answers the ‘begging the question” objection. The moral standards bit – sure I accept that (so the bit above about the woman being immoral too).

    The legal thing – well laws just do take into account pragmatic stuff. It might well be the case that we think that given that people do have tipsy sex, drunken sex, etc., and that they will continue to do so, we’re not going to legislate so that people have to be able to determine with x amount of accuracy whether a woman who is drunk and thinks she wants sex really wants sex (whereas we might have legislated thus – or at least set the bar higher – if people didn’t tend to mix alcohol and sex).

  10. “In the rape case, I don’t know what to say about what a sober person should think about a woman who is drunk and acting like she wants to have sex (as appears to have been the case in the situation in question). ”

    I think they were both drunk in this case, just that she was so drunk as not to remeber her actions. It is generally frowned upon socially for a sober man to sleep with a drunk woman, isn’t it? This would certainly have been seen as sleazy behaviour when I were a lad. It is a major plot point in Kingsley Amis’s Take a Girl Like You, by the way. But you can’t legislate the problem away without lowering a woman’s staus as an autonomous being relative to a man, can you?

  11. Seems like the non-drunk person needs to side on caution, especially if they are not terribly familiar with the drunk person. I could have sex with my wife while she’s drunk and be reasonably assured that it isn’t rape, because I know her well, and know what she’s like drunk, and the kinds of things she would normally consent to and such.

    But a stranger is where we as responsible persons must not make any unreasonable presumptions about the other. And I don’t think its ever a reasonable presumption that a stranger would be willing to have sex with us.

  12. Well, you know, it seems pretty clear to me here: we’re just going to have to outlaw alcohol instead. That way we’ll just avoid this whole issue. There we go. Problem solved. Crisis averted.

  13. …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.

    Under such conditions of inebriation, is it accurate to describe what such people do as having ocurred willingly? I would rather characterize it as not unwillingly.

  14. Hmmm. I think I’d still want to describe this situation as involving ‘willing” to distinguish it from those situations where one party is merely acquiescing.

    (Side issue: remember guys, since it involves real people, we do need to be careful here how we describe this particular case).

  15. Here’s a situation which does occur. Male sober. Female very drunk, sexually provocative and taunting the male to see if he’s “man enough” for her. Is it then immoral for the male to have sex with the very drunk female?

  16. Jeremy Stangroom

    Is it then immoral for the male to have sex with the very drunk female?

    Yes. <— short answer! 🙂

  17. You’re not a misogynist at all, Jeremy. A misogynist would have answered “no”.

  18. I didn’t think I was a misogynist!! 🙂

    We shouldn’t have sex with drunk people, well anybody, if we even suspect that they might regret it in the morning (which given how bad I am in bed, pretty much rules out sex for me, but that’s another story!).

    It’s not always easy to live up to that standard, of course, but we should aim at it.

    (This, needless to say, is a different issue as to whether it is right to criminalise the behaviour, etc).

  19. > “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 think I’d still want to describe this situation as involving ‘willing” to distinguish it from those situations where one party is merely acquiescing.”

    These two sentences taken together make me reluctant to ascribe any real moral failing at all. Alcohol isn’t a mind control device and – to my mind – ‘willingness’ implies having sufficient faculties of awareness that one is consenting by participating. Being willing is at least giving tacit consent.

    I might not have proposed to my wife if I hadn’t been in a bloody good mood that day; high spirited; on top of the world. That doesn’t mean that the proposal was falsely procured or that it was any the less romantic. (This is a made up example – I’m not married – I hate both sexes, too.)

    You ask “why – if it is the case – should the burden of sobriety – and thereby ensuring “real” consent – fall on the man?” I think that if willingness implies or is the same as tacit consent then that’s not where the burden falls. In fact I’ll go further. There is no burden because I don’t recognise a moral failing.

    Sometimes it’s good to lose – not all control – but a lot of control. A lot of people enjoy getting into a state that is sufficient to have conscious, memorable sex (that’s ‘memorable’ literally in the sense of being able to remember it) with people or under circumstances that otherwise might have been difficult to psychologically commit to.

    (Let me stress – this take on it is entirely dependent on the presence of that word “willing”. What I’m suggesting is that if someone said after the fact that they were “willing” but too drunk to consent then I don’t really understand what they mean; that’s like responding to a challenge by saying “I’m game” then later saying that you never explicitly, formally agreed to compete.)

  20. You said that people might think you were a misogynist. In any case, I agree with you that if one is capable of assessing the situation, that is, if one is sober, it’s not a good idea to have sex with someone who might regret it in the morning. That presupposes a great deal of respect for and concern for others.

  21. Jeremy Stangroom

    That presupposes a great deal of respect for and concern for others.

    Actually, I’m not sure it does. (Seriously). I think one can be Kantian about this – in the sense that one thinks that it is important to treat people as ends rather than means – without really respecting or being concerned about particular other people. (I think that’s something like my take on it.)

    Of course, there are all kinds of definitional complications here (I can see that one might counter that what defines respect is that one treats people as an end.)

  22. Theoretically, you could reach the same conclusion as a Kantian, but it seems difficult to be a Kantian when a drunk woman is trying to seduce you. Respect and concern are more likely to keep you from jumping into bed with her than the categorical imperative. In any case, her offering sex is in some sense a offer of human contact (although it may be expressed in terms of taunts about manhood) and perhaps deserve a certain reciprocity: respect and concern are a form of reciprocal human contact, of touching her (without touching her) while the categorial imperative is like treating her as if she were an algebraic equation.

  23. This is something I don’t get with court cases– if a women is really really drunk and doesn’t say NO in a positive and clear way it is assumed that she is available for sex.
    i.e the default is; if she is out in mixed company getting blind drunk she is there for sex unless she states explicitly otherwise (hopefully with a witness). The onus is on her to prove she didn’t consent.

    I wonder how this would play out if a guy was out getting legless with his football team and in the small hours of the morning his drunken best friend decided to “have sex” with him – cause he didn’t actually state he didn’t want to …would that be rape or just “regretful sex”?

  24. Jeremy Stangroom

    cause he didn’t actually state he didn’t want to …

    It’s an interesting question, Tricky, but again can we make it absolutely clear that we’re not suggesting that this is what happened in the court case we’ve discussed. The claim there was that the woman involved was an active participant (it wasn’t just that she didn’t say no).

    I know it’s a pain, but we do need to be careful here. The libel laws in the UK are draconian.

  25. Sorry Jeremy didn’t mean to cause alarm. I haven’t read up all the detail of that particularly court case and wasn’t referring to it.

    My question was more in general, regarding the different standards that apply in some of these “drunken” scenarios in regard to the gender of the person.

    Here in Australia the penalty for serious crimes is often bizarrely downgraded because the defendant was “under the influence” and “didn’t know what they were doing’ aside from the fact they probably put themselves in that state.

    In an unwanted sexual event the issue gets even more clouded. One party may be able to claim diminish responsibility due to drunkenness yet the other in the same exact same state (or worse) must demonstrate enough clarity & responsibility to prevent a crime.

  26. Expanding on the situation in Tricky’s last paragraph, does removing gender make the situation different?

    If two drunken men both actively participate in sex, each is penetrated by the other, can we apply more responsibility to one of the men? When sober if one man feels raped should we charge the other?

  27. I think Tricky’s counterfactual helps clarify the issue too. I would say it is fairly common for a man to agree to sex with another man when drunk and regret it in the morning, especially if he does not ordinarily consider himself homosexual. But I think it vanishingly unlikely that anyone would accept that rape had taken place. Does that suggest that we tend to assume a higher degree of autonomy and self-responsibility among men than among women?

  28. It seems perfectly conceivable that a man could accuse a woman of rape, if it’s just a matter of drunkenness preventing consent. Conservative guy is saving himself for marriage. He gets drunk and a gal gets him to go to bed with her, exploiting the situation. He could say he was raped. This is a bit like the case of statutory rape involving older female teachers and students…which happens frequently. So the issue here isn’t about holding men more accountable for their actions. It’s about sexual aggressors, and their accountability for who they “agress” with.

  29. “It seems perfectly conceivable that a man could accuse a woman of rape, if it’s just a matter of drunkenness preventing consent. Conservative guy is saving himself for marriage. He gets drunk and a gal gets him to go to bed with her, exploiting the situation.”

    I don’t really buy this, he may have been exploited but it would hardly be rape because he has agreed to have sex and is, by definition, desiring sex. If he was too drunk to resist and was anally raped with an object, say, that would constitute a rape but I think that if a man cried rape because he woke up in bed with a woman he could not remember taking to bed and to whom he was not attracted once sober, I think he would be laughed out of court.

    The ‘stautory rape’ line is a bit of a red herring because it is only rape termonologically, a 15 year old girl having consensual sex with her 16 year old boyfriend has not in any sense been raped in the ways we usually mean it, but would have been ‘statutorily raped’. In the UK underage sex is not categorised as rape, although the phrase is creeping in from US TV.

  30. In my imaginary scenario, the woman could have been the aggressor. I don’t think you’re right that the man’s being aroused settles this issue. You’re dismissing the possibility of the man being raped as laughable because of a cultural assumption–that men always truly want to have sex.

    As to statutory rape, the pertinent sort of case is 40 year old female teacher with 13 year old boy. In that sort of situation, it’s easy to see how the female could be the aggressor, even though the boy does desire sex and have sex.

    As to alcohol–the idea seems to be that sexual aggressors must not take advantage of someone’s inebriation, like they mustn’t take advantage of low age or intellectual impairment. They must obtain consent, which is impossible under certain conditions. It doesn’t alter anything if the aggressor is also drunk, as we don’t and shouldn’t have different rules for drunk and sober sexual aggressors. (Ditto: no separate rules for drunk and sober drivers.)

    By the way, I am definitely not discussing the case at hand, because (a) Jeremy would get very upset if I did, and (b) there’s nothing that says there was a sexual aggressor at all in that situation.

  31. Jean, I think a lot of terms are getting confused here. For instance, “aggressor”. I would reserve the use of the term “aggressor” for sex without consent, that is, rape. The person who takes the initiative in the sexual relation is not always an aggressor: he or she may be a seducer, for example. I would say that the drunk conservative guy who ended up in bed with someone he wouldn’t have otherwise gone to bed with was seduced. There was no aggression. Similarly, I don’t see the adult teacher who has sex with a consenting 13 year old boy as an aggressor. I was age 13 once and would have gladly had sex with some of my female teachers. Now, it may be that the female teacher abuses her position of authority in seducing the 13 year old boy, but there is no aggression.

  32. Where there is rape, it seems there must be some sort of asymmetry. That’s the sense in which I use the word “aggressor.” Maybe there’s a better word. I’m convinced of this because it seems crazy to think that two people who fall into bed drunk, neither really consenting, have raped each other. Of course, asymmetry isn’t sufficient for rape. I imagine really defining rape well would take a lot of work.

  33. I’m going just riff on this and see if I say something coherent. So again Jeremy’s question is:

    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?

    Contrasted with a legal definition of responsiblity that Jean indicates:

    I was once on a jury that convicted a man of manslaughter (it was a very complicated situation). He was drunk and so was his victim. His responsibility turned on some very subtle things he “should have known.” The judge instructed us over and over again that you can’t hide behind alcohol. What a drunk man should have known is exactly what a sober man should have known.

    Why doesn’t the case of “should have known” which applies in the case of someone doing something bad not apply to people who consent to something that they might later regret whether that be sex or giving away money, or anything else? Clearly we distinguish the two states, we definitely have the idea that drunk people can be taken advantage of BUT that they can also be held to account because they “should have known better.”

    But this seems more of a convenience for punishing people within a legal system and not something that has anything to do with logic or reality. It’s quite clear that people do things when they are drunk that they would never do when they were sober…that’s in point of fact ONE reason that people get drunk in the first place. So speaking in a non-legal manner, it seems to me that there is a strong sense that people who are drunk really can’t be said to be accountable for their actions because “they” aren’t really there anymore, not in the normal sense. I know some binge drinkers and it is fair to say that alcohol can turn people into “a different person.” Now the legal system can’t really do anything with that other than to say “we are going to hold you accountable because you should know better and not put yourself into this state where you become a danger to others” but in point of fact the person who makes resolutions prior to being drunk and then fails those resolutions post drunkeness is suffering from a particular version of weakness of the will that makes it very difficult to talk about what they “actually” want since it is unclear that there is only one “them” there.

    Its seems to me that given that we have this paradox of being able to put our “selves” into “states” where we lose our “strength of will.” Given that we know that such a state exisits I think that once people alter their consciousness they are generally responsible for whatever happens to them post consciousness alteration IF they willingly entered into that state knowing that it might alter their current set of resolutions and disrupt their capacity for willing, i.e. gives them weakness of the will. So it is immoral for a sober person to “take advantage” of someone who is drunk if they know that this person behaves differently when drunk than at other times, but if they don’t know the person outside of the drunk state, i.e. a sober person meets a drunk person at a bar, then I think they can pretty much do whatever they like with them (within certain obvious common sense paramaters) since it can be reasonably assumed that the person put themselves into a weak willed state voluntarily (as opposed to having their drink drugged, or being force fed many drinks), and the sober person has no idea if the will of the person they are interacting with is prone to alteration (of their will) when under the influence. It is morally safer for them to get to know that person outside of being drunk, but I don’t think there is any great moral risk to “taking advantage” of someone who has voluntarily put themselves into a postion of having no control over themselves since “taking advantage” implies that there is an agent left that CAN be taken advantage of.

    This means that it would be more immoral to take advantage of someone with an alcohol problem (since they have an ongoing weakness of the will problem and can’t control their abilty to not be drunk) than it is to take advantage of someone who has a good deal of control over their drinking.

    It’s interesting, I feel like I’m toggling back and forth between a “pragmatic” view, and a “moral” view and they don’t mix very well.

  34. Clearly we distinguish the two states, we definitely have the idea that drunk people can be taken advantage of BUT that they can also be held to account because they “should have known better.

    That seems to sum up standard moral and legal thinking pretty well. Drunk people can’t (not can, right?) be taken advantage of. You shouldn’t let people sign away their worldly goods to you, if you can see that they’re drunk. Yet when drunk people do bad things themselves, their drunkenness isn’t an excuse. Drunk drivers don’t get excused for missing red lights.

    Yes, maybe there’s a mixture of the moral and the pragmatic behind all this. It’s partly a matter of deterring stuff, not entirely about what people are “really” accountable for. We don’t want drunk people to be victimized, but we also don’t want them to be excused for bad things they do while drunk.

  35. “You shouldn’t let people sign away their worldly goods to you, if you can see that they’re drunk.”

    You actually can’t do this I think. I’m pretty sure there are laws that render documents signed while drunk invalid. At least that’s what my real estate agent told me when I was trying to buy a house from an alcoholic. (no joke real story). We could only do negotiations in the morning before the bottle got hit.

    So yeah bottom line: the law (sometimes) protects the drunken person from being victimized, but does not excuse the drunken person from victimizing others.

    I say if one wants to force consistency on the conundrum it goes one way: people who are drunk should be treated as though they were sober (because they placed themselves into a drunk state from a sober position of responsiblity) which means they can’t beg off responsibility from doing bad things, AND they can’t claim that they “didn’t mean to be victimized” either.

  36. OK, there’s some logic in saying drunk people should be held to account for wrongdoing, but also told it’s their own problem if they are victimized. That’s giving them all around responsibility for themselves. The only problem is that then you don’t do anything about the victimizers who exploit them. They’re still on the loose and possibly about to victimize you and me! So I say–hold drunk people to account for wrongdoing, but hold others to account when they’re victimized. Of course, being victimized is no fun, so they’ll still have plenty of reason to change they’re behavior next time. (Maybe this makes sense…I’ve thought it through quickly!)

  37. The problem is that I”m not entirely clear what we are holding the victimizers to account FOR. If a drunken person sends the same kinds of signals a sober person wood (flirts, seduces, offers to buy me drinks, gives me gifts) then I’m going to be inclined to think that it’s OK to proceed with carnal activity even if they are drunk. If they say “NO” at the critical juncture and I proceed then it’s obviously wrong to proceed whether they are drunk or not. Drunkeness in and of itself is nothing other than a POTENTIAL state of weakness of the will, of incompetence to decide. But the only person who decides THAT (the question of whether or not they suffered from a bout of weakness of the will) is the person-who-WAS-drunk-reflecting-on-what-they-did-while-drunk. If one after the fact decides that one did XYZ only because one was drunk then…it doesn’t matter because one was responsible for getting drunk in the first place.

    Let me put it another way. Lets say there is a pill that makes people outrageously interested in sex. Is it wrong to have sex with people who take this pill if they take the pill voluntarily knowing full well that they will be much more inclined to have sex with other people while under its influence? I would think not as the fact that they took the pill would offer a clear indication of intent since the pill only has one purpose…to make you want to have sex. Alcohol is more complicated because alcohol (while it does tend to increase sex drive through increasing tosterone or so I’ve been given to understand) is mostly an inhibition reducer but since people are generally confused about what they want most of the time some pretty strange stuff comes out when they are drunk and its not clear how those things integrate into their day-to-day personalities.

    I’m sort of playing devil’s advocate here. But only sort of. As in, I see the moral value in being careful with drunk people, but I’m not inclined to give drunk people a very long leash. I happen to have a fair bit of contempt for drunkeness. I’m don’t want to make victimizers out of people who “abuse” drunk people because I’m strongly inclined to think of drunk people as having abused themselves the minute they got drunk.

  38. Faust: While I agree with you that a person who gets drunk willingly consents to lose his or her inhibitions and often to make a fool of him or herself, from the point of the sober person I agree with what Jeremy says (yesterday 5:20 PM) that we (sober, rational people) should refrain from having sex with someone who might regret it the next morning. It may be possible to derive that from the categorial imperative, according to Jeremy (above), although he wasn’t sure, and I derived it from the respect and concern which we owe others. I share your contempt for drunkenness; I’ve seen far too much of it in my life.

  39. Amos:

    Jeremey’s comment:

    We shouldn’t have sex with drunk people, well anybody, if we even suspect that they might regret it in the morning

    I find the caveat: “well anybody” interesting. I agree with this. If I suspect ANYBODY, drunk or not, of regreting a set of actions, then it is morally incumbent on me to not assist them in the making of those actions. I want to assist their “best intentions” where possible.

    But if I CANNOT detect that possibility of regret in them, drunk or not, then I am OK to proceed.

    Ergo: the drunken state is irrelevant. The only question is whether or not based on the available information I think they will have regrets in the morning. The burden is on the question:

    How much information should you have to know about someone before you have sex with them?

    NOT

    How drunk are they?

  40. Faust: If you’ll look at what Wayne says (March 30,
    10:26), you’ll see a way of looking at the question which is similar to what you affirm. The problem of information arises with a drunken or drugged stranger, because a drunken or drugged stranger cannot communicate accurate information about him or herself (is she married?, etc.). Therefore, we cannot know or assist their best intentions, to use your phrasing.

  41. Yes I think I’m beginning to be satisfied this is the heart of the matter…drunkeness impacts our ability to gather information about the “true” identity of the person we have encountered. If I have just met them, and they are very drunk, even if they are “comming on to me” there is a possiblity that they are acting against what their “sober self” would think best, and because they are drunk, they are not equiped to tell me what “sober self” would do in this situation.

    On the other hand if I got out on a date with someone and they are very flirty and sending signals all the way from when we first meet through their 1 drink, 2 drink….7th drink then I am in a much better position to think that the drunkeness is merely part of a continum of earlier behavior.

    So the moral questions will center around the issue of how much information we need to know about someone, and how much X degree of drunkeness would interfere with gathering that information. Obviously 1 drink won’t do it. A couple bottles of wine obfuscate the situation. And then there is the broader context.

  42. Jeremy Stangroom

    drunkeness impacts our ability to gather information about the “true” identity of the person we have encountered.

    FWIW, this line of argument was the reason in my original post I said:

    “*almost always* I would think it wrong for a man to have sex with a very drunk woman.”

    It’s possible to imagine situations where you know somebody well enough that it might be reasonable to assume you have on-going consent.

  43. I think I would probably have a much more expansive view of those situations, i.e. I don’t know that I think they are all that rare.

    But I understand your thinking much better now that I’ve thought this all through.

    The criteria for moral evaluation will def come down to rules about how much information is necessary, and we might disagree about how much information would need to be gathered and in what circumstances etc. But it would come down to an evaluation of “sober self’s better intentions all things considered.”

    HA! I wonder if this is an example of “moral luck.”

    “Hmmmmmmmm based on my calculations this person will not be mad at me in the morning if I have sex with them. OK! put me down for $100 bucks on 22 black!”

  44. I must be missing something, but if someone (woman or man, it doesn´t matter) knows or expects he or she may do things he or she can regret later, had better not to drink, nobody is forced to. I cannot see beyond that.
    This law treats women as idiots, besides being a gold mine for clever lawyers.

  45. “I must be missing something, but if someone (woman or man, it doesn´t matter) knows or expects he or she may do things he or she can regret later, had better not to drink, nobody is forced to. I cannot see beyond that.
    This law treats women as idiots, besides being a gold mine for clever lawyers.”

    So a drunk person is fair game?
    If a drunk is robbed & beaten up that is their responsibility because they choose to drink and make themselves vulnerable.

  46. “If a drunk is robbed & beaten up that is their responsibility because they choose to drink and make themselves vulnerable”

    That´s not the point at all !! Of course robbing, beating and raping a drunk is crime and must be treated as so.

    We are talking of having sex with someone who wants it, acts like she wants it and the man (who is part of the scene, of course, and very likely as drunk as she is) have to think: “poor woman, how can I be sure she wants me, she looks a bit drunk ?”. That makes no sense for me.

    If a drunk buys or gives something, has he or she the right to have it back the day after ? What if she orders a meal she finds out later she didnt like very much ? That is what is being discussed here.

  47. Jeremy Stangroom

    Wagner

    If a drunk person offers to sell you something you know is:

    a) Very valuable;

    b) Enormously important to them;

    And you also know that they wouldn’t offer to sell it to you if they weren’t drunk.

    Then absolutely you should not buy it.

  48. Jeremy,

    I agree with you that you should not explore or abuse a drunk person, like buying something you know is valuable or having sex with her if you are sure she would not want it if not drunk. I think I would act like that (at least I think i should).

    But, once you´ve done that (remember you are probably a bit drunk as well) you may have not acted well and even regret doing so, but you cannot be punished for it by a LAW, since you didnt break any.

    Besides, it´s easy to undo some acts, for example you can give back anything you had bought, but how to undo a sex already made ?. Or, supose you both spend a lot of money together drinking, eatink, gambling, etc. If the money belonged to the drunk person, are you responsible for this money already spent ? should you be arrested for robbery ?

  49. Wagner: A few issues are getting confused here. First, legal issues. We’re not discussing legal issues here, as far as I know. There is nothing illegal about having consensual sex with a drunk person. Second, what a drunk person can expect in the real world. Yes, if you get drunk, you can expect that some people will take advantage of you, either sexually or financially or otherwise. That is a good reason not to drink in excess. Finally, how an ethical person would behave with a drunk person in regards to sexual relations. You yourself agree that
    one should not abuse or exploit a drunk person, that is, that abusing or exploiting a drunk person is not ethical. The fact that many people do abuse or exploit drunk persons does not make that abuse ethical.

  50. Amos: I´m sorry if I got confused, but the very first comment on this issue says:

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

    As far as i know rape is a crime and a legal matter.

    As an ethical matter I may agree with you, but, by any means I would use the word “rape” (english is not my mother language, may be that´s why I think it´s a very strong word). I also think that it does make difference if the woman is a mature one or a 18-virgin.

    Anyway I still have some points:

    What if she has the best sex she ever had? Or the advantage taken exists only if the sex is bad ?
    Cant the experience (even if not good) be useful for some good thinking about how sex can be good or bad ? Or why she has to drink to be willing to do it ?
    Why a bad sex experience (supposing the woman is an experienced one) is something so bad ? Why not seeing it as something that should not happen, but it´s no big deal ?
    Is ethical to get drunk, acting sexy, turn the man on, and expects he to understand all that and refrain from what both are looking for ?

  51. “Is it ethical to get drunk, acting sexy, turn the man on and expect him to understand all that and to refrain from what both are looking for?”

    The problem is that we aren’t sure that the drunk woman is really looking for sex: we assume that a drunk person does not know what he or she is doing. However, from the point of view of virtue ethics at least, getting drunk is not a virtuous act, moderation being one of the 4 principle virtues according to the Greeks. So, the woman’s behavior is not ethical in that sense, even if and probably because she doesn’t know what she’s doing, rationality being a virtue.

  52. i was at a parade.. and i was hanging with my boyfriends friends.. and i was drinking (a couple of daiquiris and a beer) and i slept with this boy… i didn’t want this.. this was never my intention.. i barely remember anything going on .. i just layed there… is this rape?

  53. Jeremy Stangroom

    Emily – I don’t think anybody here can really answer that question. In the UK, as I understand it, it’s the case that if you had drunk enough that you weren’t able to remember what was occurring, and you did not explicitly consent (i.e., something more than simply lying there), and the sexual encounter was not reciprocal (i.e., you were not responding, etc), then there could probably be a legal case to answer (on the part of the boy).

    I am confident, and I think more or less everybody on here woudl agree, that in the situation you describe, the boy is behaving very badly (i.e., it’s a clear moral wrong).

  54. Sorry to join this debate so late.

    I just wanted to speculate whether the concept of decision-making capacity might be important here. I’ve talked about it before, but in UK law being judged to have the capacity to make a decision turns on whether a person can understand information relevant to making a decision, remember it long enough to make a decision, weigh the information and communicate their decision.

    This four domains are assessed in relation to the specific decision that needs to be made, as the complexity of the given decision may determine whether a person needs to have more or less advanced skills in any of these domains.

    The level of scrutiny given to a person’s decision-making capacity is also heavily influenced by the gravity of the decision that needs to be made.

    If we accept this framework as sound and potentially applicable to decisions surrounding sex, then I think several things might follow from it:

    1. Intoxification with alcohol is relevant only in so far as it impedes a person’s ability to understand, weigh up, remember info long enough to make a decision and communicate their decision. This is likely to be on a continuum and depends on the complexity (and gravity – see 2) of the decision. Hence we make a distinction between paying for a meal when drunk and selling one’s house when drunk.

    I definitely think you can be drunk yet retain decisional capacity for some decisions. I actually think you need to be very drunk, not just drunk, to lose capacity to decide to have sex. Generally speaking, if a person can understand what’s going on, can weigh up the advantages and disadvantages of engaging in the act (and are not subject to undue pressure), has a memory that adequately supports the decision-making process and can communicate their desire then they have the ability to make a decision and are therefore responsible if they choose to have sex.

    2. The level of scrutiny given to this by each sexual partner might depend on the seriousness of the consequences to them and their potential partner. Here there is room for controversy, as the value placed on sex (and it’s consequences) is of course highly variable from one individual to the other. That is, controversy might arise in relation to the extent to which different parties believe there is a need for careful assessment of decisional capacity.

    3. Those parties who have sufficient decisional capacity are responsible for (a) deciding to have sex themselves and (b) deciding whether the other party also has sufficient capacity to have sex or not.

    4. There should be an assumption of intact decisional capacity unless there is reasonable doubt (knowledge of intoxification would clearly provide this reasonable doubt).

    5. If a person does not have decisional capacity, then a person must act according to the best interests of the other party. It’s safe to assume this means not having sex with them.

    Some interesting questions arise. If two people who are equally intoxicated (to the extent that their decisional capacity is equally impaired) have sex, who is responsible for the act? Who is responsible for assessing capacity?

    It may also arise that a person has sufficient capacity to decide to have sex themselves, yet insufficient capacity to decide whether the other person has capacity. This is based on the perhaps controversial assertion that it might be a less complex decision to decide to have sex than it is to assess someone else’s capacity to make that decision.

    The fact that we know these situations can arise when we or others are intoxicated are good grounds for calling attention to the importance of ‘meta-responsibility’, alluded to earlier by Jean and others. That is, we are responsible for the decision made, when sober, to not stay sober. This is hugely important in my view and clearly informs the legal and moral debates. For instance, if someone was given stupifying amounts of strong alcohol without their consent or knowledge and then committed a crime then one would expect the Courts to take this into consideration and probably admonish the person.

    The idea that people still have the capacity to make their own decisions when very very drunk, is fallacious – what they are responsible for is the decision to get in that state in the first place.

    All capable adults, male and female, have a responsibility to themselves and to society to retain decision-making capacity. If they willingly decide to sacrifice this capacity then they place themselves at profound risk from predators but also other people who may also lack decision-making capacity. Opting out of capacity also means placing other people who lack decision-making capacity at risk.

    This may sound harsh, but reminding people they do have responsibility and control may help keep them safe and prevent a lot of unpleasantness.

  55. Er, after re-reading Jeremy’s post I realised I’ve simply got to the problem he was presenting, not offered any insights.

    I would say a person has sexual responsibility if they have the capacity to assess the other parties capacity to consent to sex. They have sole sexual responsibility if the other person lacks capacity.

    If both parties lack capacity, then the issue becomes one of meta-responsibility. Did both parties willingly get themselves into a situation whereby they lacked the capacity to consent? If so, then both are responsible for the consequences. If party A had a hand in getting party B to unwillingly lose capacity (perhaps through deception or pressure) then that party is responsible for the consequences.

    I can’t see a significant role for gender here other than the relationship between being male and having greater physical strength. If a woman of superior strength were to force a man to engage in a sexual act, the violation would be equivalent.

  56. Simplest solution if both are drunk:

    Prosecute them both for rape. After all, the man was drunk as well and couldn’t consent, and since being drunk isn’t an excuse for a crime (see also: drunk driving) the woman will have to be charged as well.

    I imagine after a few dozen women go to jail the laws will get changed in no time at all.

  57. Bottom Line: We have to be RESPONSIBLE for Ourselves. Men and Women. A women has to be responsible for what she drinks and how much. So does a man. If something happens to either group, they lead themselves their for losing their responsiveness.

  58. I say taking advantage of a drunk person is only when the situation is dangerous enough. So like, having sex with someone you know would regret it or you know wouldn’t want to do this for at least mostly while sober is taking advantage of but it wouldn’t be rape of there was still reasonable consent while drunk. what makes something that is taking advantage of someone depends on how dangerous it is to the person

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