In April of this year, Welsh international soccer star, Ched Evans, was sentenced to five years in jail after being convicted of the rape of a young woman, who, in the words of the judge, was "extremely intoxicated" and in "no condition to have sexual intercourse." The legal principle that resulted in his conviction is now well-established: consent requires that a person is capable of consenting, and if you're very drunk, you're not capable of consenting. The UK's Sexual Offences Act (2003), for example, states that consent exists if a person agrees by choice to engage in sexual activity and has the freedom and capacity to make that choice. A person who is "extremely intoxicated" lacks that capacity, which is why Evans, who admitted having sex with his victim, is now in jail.
However, although a person cannot consent if they're extremely intoxicated, it doesn't necessarily follow, even in those cases where there is no previously established consent (as, for example, might exist between a married couple), that drunken sex itself cannot be consensual. Consider, for example, the following hypothetical scenario.
Dido and Aeneas hook up at a nightclub, and then travel back to her place, where they get cozy together on the couch. Aeneas is hoping for a night of passion, but is rather disconcerted when Dido explains the circumstances under which this might occur:
Look, Aeneas, I want to want to have sex with you, but I never actually want sex unless I'm drunk. It's the only way I can relax, and if I can't relax, then I can't get aroused, which means I won't enjoy it. But hey, I'll start drinking now, and hopefully there will come a point where I'll be relaxed enough to allow us to go ahead. But you must realize that I'm not consenting right now to have sex with you later. I'm simply telling you that I'm choosing to drink now in the hope that I will come to want sex later on, and I'm letting you know that my intoxicated consent - if I come to give it - will be genuine consent.
Dido starts drinking, and eventually tells Aeneas that she's ready to have sex with him. Aeneas, though, is worried, because although Dido is cogent enough, and appears to know her own mind (which means there is no legal impediment here), there's no doubt she's more than a little drunk. Normally, he would decline to have sex under such circumstances, but he wonders whether it makes a difference that she has deliberately ingested alcohol in order to get in the mood for sex. In other words, should he take Dido's consent to be valid even though she is intoxicated?
Although this is by no means an easy question to answer, some light can be shed upon it by first noting the obvious point that it is because intoxication results in cognitive and behavioural changes that issues of consent arise. Even at relatively low levels, alcohol affects, amongst other things, personality, mood and the ability to make decisions, with the consequence, of course, that it also affects behavior. This raises the possibility that drunken consent, even if it meets the legal bar for consent (as in our scenario), is compromised to the extent that it does not reflect the intoxicated person's established, and relatively stable - i.e., sober - interests, desires and beliefs. (If you're not sure why this is the case, ask yourself whether you'd trust the drunken version of yourself to make a decision about whether or not to participate in some relatively dangerous activity that you would normally avoid.)
In this regard, the philosopher Immanuel Kant has illuminating things to say about morality. According to Kant, it is morally wrong to treat another person solely as a means to an end - so, for example, it would be wrong to punish an innocent person just because the consequence might be a drop in the overall crime rate. If we have sex with a person in the full knowledge that they are acting out of character, especially if we have reason to believe that once sober they would regard their own drunken behavior as violative in terms of their core beliefs and values (or perhaps even in terms of their sense of self), then it looks like what we're doing is taking advantage of an aberrant situation for the sole purpose of our own sexual gratification, without paying due regard to the established interests, desires and beliefs of our sexual partner. If this is the case, then, in Kantian terms, at least, what we are doing is wrong.
So what does this line of thought tell us about the case of Dido and Aeneas? In one way, it should make us feel better about the prospect of their having sex together. Although it is true that Dido would not have consented to sex without alcohol in her system, her intoxicated consent seems to be consistent with her established interests, desires and beliefs. As she put it, she wants to want sex, and she would be offended if anybody suggested she was being taken advantage of just because it so happens she only ever wants sex while drunk. Dido's intoxication is simply the way she gets to the point where she desires sex. Therefore, at least arguably, Aeneas would not be taking advantage of her if he went ahead with the sexual encounter.
However, there is a layer of complexity here that should make us feel a little nervous about the prospect of their sexual congress. Aeneas has what might be called an epistemic problem. He doesn't know Dido well enough to be able to make a confident judgement about whether or not her intoxicated consent reflects her established interests, desires and beliefs. So a cautionary principle should hold sway. If you can't be sure that you won't merely be taking advantage of a person in a vulnerable moment if you have sex with them, then you shouldn't have sex with them. Aeneas can't be sure, so what he ought to say to Dido is that he needs to get to know her better before they enjoy each other in a more fleshy way.
Jeremy Stangroom is the author of Would You Eat Your Cat?
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