Drunk sex

Capability to understand. That is "capacity" in a nutshell when it comes to the law regarding contracts, and it applies to sex as well.

With a contract the concern is whether you are capable of understanding the terms of the contract and what you are doing when you agree to the contract.1 If not the contract is void or voidable. Not understanding the terms of the contract, for instance because you didn’t read it, is not contractual incapacity.

Now what if you enter into a contract while intoxicated?2

Courts are usually not very sympathetic to people who claim they were intoxicated when they signed a contract.  Generally a court will only allow the contract to be avoided if the other party to the contract knew about the intoxication and took advantage of the intoxicated person, or if the person was somehow involuntarily intoxicated (e.g. someone spiked the punch).

Every contract has two parties. In this example, we’ll use the typical Alice and Bob names, but we’ll make Bob the guy who had a little much at the bar before signing a sales agreement. If Alice can easily discern or have adequate reason to believe Bob is intoxicated, yet allows Bob to sign the sales agreement anyway, the contract may be voidable. If Bob takes Alice to Court over the contract, he may be able to get the contract nullified.

Alice would actually have some level of responsibility to ensure that Bob is capable of understanding the contract, and being intoxicated can impair that ability, especially given how complex contracts can be. If she doesn’t exercise that responsibility, she may find herself without the contract she wanted. Plus she could take on the reputation of taking advantage of potential clients. Neither would be good for her business.

Now if Bob is unable to hold the pen or a coherent conversation, there’s no doubt that contractual capacity is severely compromised.

But let’s talk sex, sexual consent, and, by extension, rape.

There is a growing segment within feminist culture in the US that can be summarized as "if she has one drink, she cannot consent to sex", or "If they aren’t sober, they can’t consent" (image at right). So one drink makes a person legally incapacitated, legally incapable of consenting to sex. Forget the "one drop rule", apparently now we have the "one drink rule". Or is this also the "one drop rule", as in one drop of a drink and suddenly she loses her capability to consent to sex?

To believe this extreme, one must believe that one drink can strip a person’s capacity under the law. No Court in the United States has ever accepted such a claim, to the best of my knowledge.One beer or one shot of liquor cannot do that and does not do that. I don’t even think there’s a mixed drink capable of getting a person drunk in one go.

If you were to have a beer with a sales representative before signing a purchasing agreement, then try to challenge it under diminished capacity after seeing some details in the agreement that you didn’t like, no Court will side with you.

If you were to have one drink and have sex, then try to claim it was rape because that one drink made you incapable of consenting, no prosecutor would take you seriously. Extraordinary claims require extraordinary evidence, and even in cases of rape, the burden is still on the accuser. And for the accuser to argue legal incapacitation after only one drink requires that to be a very extraordinary drink, meaning there had better be a blood analysis to go along with the claim.

Now in the earlier example, I said that if Alice allows Bob to sign a contract while Bob is intoxicated, the contract could be voidable if Bob takes Alice to Court over the matter. But that is also because of how complex contracts can be, and the contract itself will come into play in any Court proceeding. A complicated contract signed while one party is clearly intoxicated could be grounds for having the contract voided.

Sex is not that complicated.

Are there people for whom one ordinary drink could be enough for legal incapacitation, even with sex? Sure, but typically those individuals are already legally incapable of consenting to sex on a matter of their age.

In a 90 lb woman, 1/2 oz of actual alcohol (equivalent to 1 standard serving of alcohol) can provide a .05 BAC, enough for mild impairment. To say that is enough to eliminate legal capacity with regard to sexual consent is one hell of a leap. But even two drinks, impaired enough to be legally barred from driving, may still not be enough to constitute legal incapacitation when it comes to sex. Again it comes down to whether she can understand what is going on around her.

Yet women like Rebecca Watson have said3, to paraphrase, that if she’s drunk and you have sex with her, it’s rape, even if she initiates.

The context of Watson’s incarnation of the idea comes from the show The Big Bang Theory, specifically the episode where Penny shows up at Leonard’s apartment obviously drunk4, berates him for a brief period before taking his hand and walking him to his bedroom, announcing in the process that they’re going to have sex. The question arising from this is whether that is rape, specifically if Leonard is the rapist, and comes down to whether Penny had the capability to consent to sex, despite showing quite clearly that she knew what she was doing, even if she may have regretted it in the morning.

The problem with declaring all drunk sex as "rape" is the varying levels of intoxication under the "drunk" banner, from the legal BAC levels recognized for driving (.08% is the typical rule in the US) to the levels needed for alcohol poisoning. One needs to be a little more specific on at what point alcohol does eliminate one’s capacity to consent to sex. Sobriety is a sliding scale and dependent on the level of alcohol consumption and the individual. But there are some clear indicators.

For example, if a person’s motor and/or speech functions have become impaired by their alcohol intake (having difficulty standing or walking upright, slurred speech), along with presenting an obvious inability to control one’s urination and/or defaecation, then any consent to sex or attempt to initiate sex should not be considered to have genuine consent behind it – setting aside for the moment why one would even want to have sex with such a person.

In Watson’s cited example with Penny and Leonard, Penny was not impaired to such a degree. She was drunk, but not to such a degree she could not speak coherently and presented only a slight degradation in her motor skills, though she was beyond the point of being able to legally drive.

So if she is intoxicated but otherwise functional, is she still capable of consenting to sex? That is something that would need to be evaluated on a case by case, person by person basis, but in general, I would say yes, she is still capable of giving genuine consent. Now if the alcohol caused the woman to go from emphatically not wanting to have sex with a guy to fawning all over him, then the authenticity of her consent should certainly be called into question.

However, in no instance is it presumed that one drink eliminates a woman’s capacity to consent to sex. And a woman who is intoxicated can still give genuine consent to sex, but whether a particular intoxicated woman in a specific instance is actually giving genuine consent is something that is to be evaluated on a case by case, person by person basis, and any blanket statements should be dismissed outright.

References   [ + ]

1, 2. FindLaw.com. "Will Your Contract Be Enforced Under the Law?"
3. Rebecca Watson, 2012-12-17, "If you have sex w/ someone who is drunk, they are unable to consent & that is rape." (Image capture)
4. Video: http://www.youtube.com/watch?v=DATlxa7PwWE