If we were both drunk was it consensual?

Is It Consensual If We Were Both Drunk?

One question I get asked a lot is about what happens if two people were both drunk when they have sex – would it be consensual?

What is the law?

Is being drunk (or high or stoned) a defence?

No. If someone is accused of rape or sexual assault, or any offence in the Sexual Offences Act of 2003, being drunk is not a defence*. If they were being questioned, saying ‘I was drunk, I didn’t know what I was doing’ is not going to get them off. (*they are crimes of basic intent and therefore the defence of intoxication is not available R v Lee Heard (CA) (2006), innit).

being drunk is not a defence…

In an investigation of someone the Police will ask about “what steps, if any, the suspect took to obtain the complainant’s consent.” If someone was drunk then they are going to find it difficult to show that they did understand or reasonably believe that the other person was consenting. So in fact, not only is being drunk not a defence, it may also help the prosecution case.

Also if one person was trying to get the other person drunk (or more drunk than them), or one person was buying the other person drinks, this gives the prosecution more evidence that an offence may have been committed. Sometimes people are targeted specifically because they are drunk or someone tries to get them drunk because they know this makes them more vulnerable. The law and prosecution guidelines specifically addresses this: if someone was drunk they were not ‘asking for it’ but actually more vulnerable and so more protected under the law.

If the person who reported it was drunk

If somebody is drunk they may not be able to consent. This is known as capacity – like how able someone is to do something. If it could be shown that the person who reported it was really really drunk (or high, or stoned) at the time then the judge can tell the jury that it may not have been possible for that person to give their consent.

if someone is very drunk, they might not be able to consent

This is also true if they were (or are close to being) unconscious – in other words, they have passed out. If someone can’t consent in the law, anything that happened to them could be an offence.

If they were both drunk and both reported it

If you are both (or all) drunk and both report an offence to the Police then you can all be investigated and potentially charged. The Police will look for evidence in their investigation and may find enough evidence to charge one or more of the people reporting the offence.

But what’s right tho?

When people ask me these questions about what the law says about sex, consent and being pissed I suggest that mmmmmaybe they should be thinking about how ethical and ‘good’ they are being when it comes to sex? If you’re worried about whether something you’ve done is ‘legal’, you might be over the line of what is ‘right’ – IMHO.

I don’t know what you think, but I don’t think that sex should be one person doing a thing to another. I think for sex to be good, it should be about doing it together with each other – paying attention to what each other is into and trying to make it a nice thing you are both (or all) into.

I know I know I know, a lot of people have sex when they are drunk. It’s often not a problem and as I say here, it can often be great. People sometimes might need to drink (or take drugs) to help them feel relaxed, horny and confident in asking for what they do and don’t want. Of course with this there is a balance between being drunk enough to enjoy sex and being too drunk to be able to consent to sex (or to understand if someone is consenting to sex). It’s not always easy getting that balance right though – so it’s just about being a little bit sensible.

Top tips for consensual sex when drunk

  • You might know your limits but do you know the other person’s? You might be able to have 1 or 2 drinks and it’s no big deal, other people might have that much and feel seriously tipsy. Pay attention to this and check in with how they are feeling.
  • Your own judgement is affected. If you’re finding doing simple things like crossing roads, operating google maps or putting your key in your front door* difficult then so is judging whether someone is up for sex or not. Remember the scary legal stuff from above – being pissed is not a defence. (*not a euphemism)
  • Remember that consent is an on-going thing. Someone can go from being well up for it to being not up for it really quickly. Particularly when drunk. So go slowly and keep checking in. Some tips on how to do this here. Hopefully the other person will be doing this for you too. If you’re in any doubt whatsoever, just stop.
  • One thing doesn’t have to lead to another. As I’ve written about here, there’s the script for sex: snogging, nakedness, masturbation/oral/grinding, entry sex – which is well problematic. A snog doesn’t mean someone wants the ‘next’ thing so don’t assume it does. If you want to just snog each other’s faces off for hours whilst pissed that’s just fine (and probably quite a lot of fun).
  • You really think you both want to do it but you’re worried that you or both of you are a bit too pissed, you could say so and give them an out. “I really fancy you but I’m a bit pissed. How are you feeling?” “Same. Let’s have a snooze and see how we feel after.”
  • If someone is slurring their words, not able to focus their eyes, being clumsy, forgetting stuff, or looking sleepy it’s time for beddy byes. Put them on their side, put a cover over them and get them a glass of water. If you’re leaving, maybe leave them a note or try and mention to a housemate that they are pissed and have gone to sleep. If it’s your bed, put them on one side, don’t undress them – same goes for you.
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© Justin Hancock, 2016

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