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More Thoughts on Informed Consent and Alcohol

Rational Agnostic

Well-Known Member
This is a continuation of my previous thread about sexual consent and drunkenness, and why, after more consideration, I have come to the conclusion that holding to the position that a drunk person cannot give informed consent to sex is problematic. I recognize that the majority of people about to read this probably already agree with me. However, there have been some people in my experience (including at least one on this forum) who seem to think that a person who is too drunk to drive is too drunk to give informed consent to sexual activities. So, I want to make another case for why this is a problematic position to hold. The idea that a drunk person cannot give informed consent is, according to my understanding, based on the idea that a drunk person cannot be held responsible for the choices that they make while drunk. For instance, if someone enthusiastically consents to sex while under the influence of alcohol, but would not have done so while sober, the argument (from some people) is that the person was taken advantage of while intoxicated since the person was not in their normal mental state and thus should not have to deal with the ramifications of the choice that they made while drunk. But, if we carry this logic to its next step, then no person who commits a crime while drunk should be prosecuted. Driving under the influence should also no longer be a crime since the person made the decision to drive under the influence of alcohol while intoxicated, and thus cannot be held responsible for his/her choices. So, clearly, the idea that a person cannot be held responsible for his/her sexual decisions while intoxicated is a difficult position to hold, since, to be logically consistent, one who holds this position is also forced to conclude that a person should also not be held responsible for other decisions made while intoxicated, meaning that drunken driving should no longer be a crime.

But, perhaps I'm misunderstanding the argument. Is the idea that a drunk person cannot give informed consent based upon the idea that a person should not have to be responsible for choices made while drunk, or is it based on something else? Is it possible to logically argue that a drunk person cannot give consent, but driving while intoxicated should still be a crime? I don't see how, but it's possible I could be wrong.
 

epronovost

Well-Known Member
Informed consent doesn't equate with criminal responsability. They are two different concept both in law and in ethics. Informed consent is a choice, criminal responsability is an ability.
 

Rational Agnostic

Well-Known Member
Informed consent doesn't equate with criminal responsability. They are two different concept both in law and in ethics. Informed consent is a choice, criminal responsability is an ability.

I don't understand. Consenting to sex is a choice. So is deciding to drive drunk.
 

Skwim

Veteran Member
This is a continuation of my previous thread about sexual consent and drunkenness, and why, after more consideration, I have come to the conclusion that holding to the position that a drunk person cannot give informed consent to sex is problematic. I recognize that the majority of people about to read this probably already agree with me. However, there have been some people in my experience (including at least one on this forum) who seem to think that a person who is too drunk to drive is too drunk to give informed consent to sexual activities. So, I want to make another case for why this is a problematic position to hold. The idea that a drunk person cannot give informed consent is, according to my understanding, based on the idea that a drunk person cannot be held responsible for the choices that they make while drunk. For instance, if someone enthusiastically consents to sex while under the influence of alcohol, but would not have done so while sober, the argument (from some people) is that the person was taken advantage of while intoxicated since the person was not in their normal mental state and thus should not have to deal with the ramifications of the choice that they made while drunk. But, if we carry this logic to its next step, then no person who commits a crime while drunk should be prosecuted. Driving under the influence should also no longer be a crime since the person made the decision to drive under the influence of alcohol while intoxicated, and thus cannot be held responsible for his/her choices. So, clearly, the idea that a person cannot be held responsible for his/her sexual decisions while intoxicated is a difficult position to hold, since, to be logically consistent, one who holds this position is also forced to conclude that a person should also not be held responsible for other decisions made while intoxicated, meaning that drunken driving should no longer be a crime.

But, perhaps I'm misunderstanding the argument. Is the idea that a drunk person cannot give informed consent based upon the idea that a person should not have to be responsible for choices made while drunk, or is it based on something else? Is it possible to logically argue that a drunk person cannot give consent, but driving while intoxicated should still be a crime? I don't see how, but it's possible I could be wrong.
Yeah, in your original thread's OP "informed" wasn't part of the consent.

.
 
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epronovost

Well-Known Member
I don't understand. Consenting to sex is a choice. So is deciding to drive drunk.

That's correct. Drunk people can provide informed consent (well up to a certain point), what's your point? Of course consenting to sexual activities while drunk isn't a crime because you are not at significant risk of killing yourself and others (especially others).
 

Rational Agnostic

Well-Known Member
That's correct. Drunk people can provide informed consent (well up to a certain point), what's your point?

Well, I think we already agree. The thread was directed at those who believe that drunk people cannot provide informed consent. Another problematic question, though, that @Skwim originally brought up, is the issue of how we decide exactly where the "point" that a drunk person cannot provide informed consent is.
 

PureX

Veteran Member
This is a continuation of my previous thread about sexual consent and drunkenness, and why, after more consideration, I have come to the conclusion that holding to the position that a drunk person cannot give informed consent to sex is problematic. I recognize that the majority of people about to read this probably already agree with me. However, there have been some people in my experience (including at least one on this forum) who seem to think that a person who is too drunk to drive is too drunk to give informed consent to sexual activities. So, I want to make another case for why this is a problematic position to hold. The idea that a drunk person cannot give informed consent is, according to my understanding, based on the idea that a drunk person cannot be held responsible for the choices that they make while drunk. For instance, if someone enthusiastically consents to sex while under the influence of alcohol, but would not have done so while sober, the argument (from some people) is that the person was taken advantage of while intoxicated since the person was not in their normal mental state and thus should not have to deal with the ramifications of the choice that they made while drunk. But, if we carry this logic to its next step, then no person who commits a crime while drunk should be prosecuted. Driving under the influence should also no longer be a crime since the person made the decision to drive under the influence of alcohol while intoxicated, and thus cannot be held responsible for his/her choices. So, clearly, the idea that a person cannot be held responsible for his/her sexual decisions while intoxicated is a difficult position to hold, since, to be logically consistent, one who holds this position is also forced to conclude that a person should also not be held responsible for other decisions made while intoxicated, meaning that drunken driving should no longer be a crime.

But, perhaps I'm misunderstanding the argument. Is the idea that a drunk person cannot give informed consent based upon the idea that a person should not have to be responsible for choices made while drunk, or is it based on something else? Is it possible to logically argue that a drunk person cannot give consent, but driving while intoxicated should still be a crime? I don't see how, but it's possible I could be wrong.
Alcohol impairs our judgment. Informed consent requires clear judgment. Therefor, alcohol impairs informed consent.

It's not rocket science.
 

Rational Agnostic

Well-Known Member
Alcohol impairs our judgment. Informed consent requires clear judgment. Therefor, alcohol impairs informed consent.

It's not rocket science.

But, by the same logic:

Decision making requires clear judgment. Driving drunk is a decision. Therefore, alcohol impairs the ability to make a decision as to whether one is capable of driving safely. Thus, a drunk driver should not be held responsible for his/her actions, as his/her decision making was impaired at the time of making the decision to drive.

See the problem?
 

epronovost

Well-Known Member
is the issue of how we decide exactly where the "point" that a drunk person cannot provide informed consent is.

The law says when a person is unconscious or about to fall unconcious or incapable of reacting to events unfolding around them. So really, really, REALLY drunk. Ethics would say when a person's judgement can be called in question so "fairly" drunk.
 

Rational Agnostic

Well-Known Member
Ethics would say when a person's judgement can be called in question so "fairly" drunk.

But, then, by these "ethics", a person driving drunk should not be punished, as their decision making and judgment was impaired at the time of the decision to drive drunk. Seems to me that your "ethics" are based on arbitrary personal preference. A drunk person need not be responsible for their sexual decisions (at least, if they're a female), but should always be held responsible for their driving decisions. Why?
 

epronovost

Well-Known Member
But, by the same logic:

Decision making requires clear judgment. Driving drunk is a decision. Therefore, alcohol impairs the ability to make a decision as to whether one is capable of driving safely. Thus, a drunk driver should not be held responsible for his/her actions, as his/her decision making was impaired at the time of making the decision to drive.

See the problem?

The thing you don't understand is having isn't a crime. It doesn't hurt anybody. Driving drunk is a crime because it can hurt people and should you hurt or kill someone while driving drunk you cannot be accused of premeditation precisely because you are impared. That's why drunk divers who kill people are most often on trial on manslaughter charges. Having sex without intent is impossible. Sex without intent is considered rape. Killing without intent or harming someone without intent is a crime. Do you understand the capital the difference?
 
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PureX

Veteran Member
But, by the same logic:

Decision making requires clear judgment. Driving drunk is a decision...
This is a false analogy. Sex is not driving a 2,000 pound machine, in public. Doing it impaired does not endanger the lives of everyone else. Once you stop insisting on this false analogy, your confusion will clear right up. Honest!
 

Rational Agnostic

Well-Known Member
This is a false analogy. Sex is not driving a 2,000 pound machine, in public. Doing it impaired does not endanger the lives of everyone else. Once you stop insisting on this false analogy, your confusion will clear right up. Honest!

It's not a false analogy. If you believe a person who consented to sex drunk should be able to rescind their consent once sober, then you are arguing that a person should not be held responsible for decisions made while drunk. The obvious extension of the logic is that a drunk driver should not be held responsible for driving drunk. So, either you can believe consent cannot be rescinded and believe drunk driving should be punished or believe that consent can be rescinded and drunk driving should not be punished.
 

epronovost

Well-Known Member
What if a drunk person fails to mention having AIDS prior to having sex?

That person is guilty of a crime same thing if that person said they would use contraception and didn't use any. It's called rape by deception in many jurisdiction. Being drunk doesn't remove criminal responsability. If you harm someone while drunk you will pay for your crime, but it might protect you from graver charges like if you willingly and premeditately hid the fact you were infected by a serious disease to your sexual partners.
 

epronovost

Well-Known Member
Fair enough. I'm not sure we really have any disagreement. My focus is primarily on the issue of rescinding consent, which I implied but didn't specifically mention in the OP.

Rescinding consent is only possible by law in Singapore. Unless you want to talk about removing consent while the sexual intercourse is still ongoing.
 

Terry Sampson

Well-Known Member
  • Is there a law against driving while intoxicated above a certain level?
    • Yes.
    • Not only is there a law against driving while drunk, people, bars, and others can be found guilty of "contributory negligence" or whatever the charge is in the state (assuming that we're talking about here in the U.S.)
    • So, before I have a drink, I know, right of the bat, that once I have a drink, I need to have a reality check of some sort before I get behind a steering wheel of a car.
  • Is there a law against having sex while intoxicated above a certain level?
    • It depends ...
    • Legal Role of Consent | RAINN
      RAINN (Rape, Abuse & Incest National Network) is the nation's largest anti-sexual violence organization. RAINN created and operates the National Sexual Assault Hotline (800.656.HOPE, online.rainn.org y rainn.org/es) in partnership with more than 1,000 local sexual assault service providers across the country and operates the DoD Safe Helpline for the Department of Defense. RAINN also carries out programs to prevent sexual violence, help survivors, and ensure that perpetrators are brought to justice.
    • Consent of both parties (as well as lawful age of both parties) is an increasingly important factor/consideration. Gone are the days of "if it moves, it's fair game".
    • Legal Role of Consent
      The legal definitions for terms like rape, sexual assault, and sexual abuse vary from state to state. See how each state legally defines these crimes by visiting RAINN’s State Law Database. No matter what term you use, consent often plays an important role in determining whether an act is legally considered a crime.

      The legal role of consent
      There is no single legal definition of consent. Each state sets its own definition, either in law or through court cases. In general, there are three main ways that states analyze consent in relation to sexual acts:
      • Affirmative consent: Did the person express overt actions or words indicating agreement for sexual acts?
      • Freely given consent: Was the consent offered of the person’s own free will, without being induced by fraud, coercion, violence, or threat of violence?
      • Capacity to consent: Did the individual have the capacity, or legal ability, to consent?
      Capacity to consent
      A person’s capacity, or ability, to legally consent to sexual activity can be based on a number of factors, which often vary from state to state. In a criminal investigation, a state may use these factors to determine if a person who engaged in sexual activity had the capacity to consent. If not, the state may be able to charge the perpetrator with a crime. Examples of some factors that may contribute to someone’s capacity to consent include:
      • Age: Is the person at or above the age of consent for that state? Does the age difference between the perpetrator and victim affect the age of consent in that state?
      • Developmental disability: Does the person have a developmental disability or other form of mental incapacitation, such as a traumatic brain injury?
      • Intoxication: Was the person intoxicated? Different states have different definitions of intoxication, and in some states it matters whether you voluntarily or involuntarily became intoxicated.
      • Physical disability: Does the persona have a physical disability, incapacity, or other form of helplessness?
      • Relationship of victim/perpetrator: Was the alleged perpetrator in a position of authority, such as such as a teacher or correctional office?
      • Unconsciousness: Was the person sleeping, sedated, strangulated, or suffering from physical trauma?
      • Vulnerable adults: Is the person considered a vulnerable adult, such as an elderly or ill person? Is this adult dependent on others for care?
      Remember: each state’s law is different. If you are unsure how a state law applies to specific circumstances, consult an attorney.

      Help is available
      Regardless of what happened, know that you are not alone. To speak with someone who is trained to help, call the National Sexual Assault Hotline at 800.656.HOPE (4673) or chat online at online.rainn.org. You will receive confidential, judgment-free support from a trained support specialist and information about local services that can assist you with next steps.

      It can be challenging to come to terms with what happened. If you are unsure about whether a crime legally occurred, or have further questions about a state’s law and how it applies to a specific event, you can consult an attorney or reach out to local law enforcement for help.

 

PureX

Veteran Member
It's not a false analogy. If you believe a person who consented to sex drunk should be able to rescind their consent once sober,
No, I don't. I believe a person that takes advantage of a drunk person's impaired "consent" should be held responsible for any harm that results from having knowingly exploited that advantage.
 
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