Once upon a time, I used to teach criminal law. For me, the most challenging section of the course was invariably the section on sexual offences. Some students would find the subject uncomfortable, perhaps even traumatising. Others, though interested and engaged, would find it difficult to articulate their thoughts in a precise way. There would be occasionally awkward discussions about the nature of sexual consent and responsibility, as well as contentious debates about the gendered assumptions that continue to underlie the law.
Every year, I would teach tutorial classes in which students were asked to consider the correct legal approach to real and hypothetical cases of sexual assault and rape. Every year, I found that one kind of hypothetical case would generate the most heated discussion, with the debate usually (though not always) breaking down along gendered lines.
The case would be posed by one of the students (I don’t believe I ever brought it up). The case would involve a man and a woman, both of whom were heavily, but voluntarily, intoxicated. The man and woman would then engage in some kind of sexual* touching. This could be penetrative or not; the exact form did not matter too much to the hypothetical (though see the discussion of this issue below). If it were penetrative, it would be assumed that the man had penetrated the woman. The question would then be posed: was there a legally chargeable sexual assault or rape?
This hypothetical would generate heated discussion because (a) the general presumption in law is that voluntary intoxication does not negate or undermine criminal responsibility and (b) there is an (emerging) social norm to the effect that you cannot consent to sex if heavily intoxicated. When these two things are combined with the general presumption that rape and sexual assault are usually male-on-female crimes, it would yield the conclusion that what you have here is a case in which the man is guilty of sexually assaulting or raping the woman. Some students (typically though not exclusively male) would perceive this to be unfair since both parties were voluntarily intoxicated. The more analytical students would point out that this revealed a puzzling asymmetry in our attitudes to drunken consent and drunken responsibility. (To show that my experiences with this hypothetical are not unusual, I suggest reading this article describing the discussion at a ’smart consent’ workshop that is taught to students in Irish universities; this hypothetical features prominently in the discussion).
Although I am sure I will regret doing this, I want share some of my own thoughts about this hypothetical case. I think the hypothetical is worth taking seriously because it reveals some of the tensions and nuances in how we think about consent and responsibility. I also think its apparently paradoxical aspects become less pronounced as you move away from the hypothetical to more realistic cases. That said, I am not sure what the best way to think about this hypothetical case is or if there is a simple correct answer to what should happen in such a case. I offer my own tentative ‘solution’ in what follows, but I’m not sure how convincing it is.
1. The Paradox and One Possible Solution
I want to start by sharpening the paradox that is supposedly revealed by the hypothetical. To do this, I need to say something about responsibility and consent, and then present a more abstract version of the hypothetical.
I begin with a platitude: Responsibility and consent are central to how we think about liability and blame. Both are dependent on similar underlying mental capacities. Since the time of Aristotle, responsibility is has been thought to depend on two basic capacities: (i) the capacity for voluntary action and (ii) the capacity to understand/know what your actions entail. If you perform an action voluntarily, and you understand what that action is likely to entail, you are responsible for it; if one or both of those things is absent, you are not. Consent, clearly, depends on the same capacities. Whether you are consenting to medical treatment, sex or something else, the validity of your consent depends on whether you signalled consent voluntarily and whether you knew what it was you were consenting to through that signal. There is more to it than that, of course. I’ve written extensively about the ethics of consent before and one theme that emerges from those earlier discussions is that the validity of consent also depends on how we expect consent to communicated and understood by the person to whom it is communicated. Nevertheless, at its core, valid consent depends on volition and understanding. This underlying similarity between consent and responsibility is what sets up the paradox or tension that students perceive in the hypothetical.
The hypothetical, however, involves one major complicating factor: the voluntary intoxication of both parties. Intoxication impairs our mental capacities. Mild intoxication (e.g. a single unit of alcohol) probably does little harm to our capacity for responsibility and consent, but at a sufficient degree of intoxication, it is plausible to suppose that the intoxicated person lacks any meaningful capacity for volition and, even more plausibly, understanding. This would seem to lead to the conclusion that intoxication, at a sufficiently high degree, undermines both responsibility and consent.
But no one really accepts that conclusion, at least not when it comes to responsibility. We know that intoxication can raise the risk of someone engaging in harmful activity. Some people even try to build up the courage (“Dutch Courage”) to engage in harmful activity by intoxicating themselves. Consequently, we don’t want people to be able to excuse themselves from blame by voluntarily imbibing intoxicants prior to doing something wrong. So, instead, we say that since they were responsible for their actions at the time they chose to get intoxicated, they are also responsible for the downstream consequences of that decision. In other words, we say that if they subsequently engaged in harmful activity we can trace their responsibility back in time to the point at which they chose to get intoxicated. This is sometimes referred to as a ‘prior fault’ analysis of responsibility.
Our attitude to consent is a bit different. Though I hesitate to give an authoritative statement on this, my understanding of the law in Ireland and the UK** is that voluntary intoxication does not necessarily undermine the validity of consent — but it might. In other words, courts are reluctant to say that all instances of intoxicated consent are invalid, but they accept that some instances might be, particularly if it seems that the intoxicated person was so far gone that they didn’t understand what they were getting themselves into.
There is, presumably, a plausible rationale behind this: we don’t want people to be taken advantage of while in a vulnerable, impaired state (hence we don’t want to say that all intoxicated consent is valid); but we also recognise, certainly when it comes to sex, that people do engage in mutual sexual activity while intoxicated and to say that all such cases are criminal due to lack of consent would be counterintuitive. That said, my suspicion is that there is less tolerance for this latter view nowadays than there used to be. You see this particularly in media commentary about sexual assault cases involving intoxication. Hence there might be an emerging norm to the effect that most (if not all) instances of alleged intoxicated consent are invalid. Either way, one thing that is clear in intoxicated consent cases is that we do not trace the validity of consent back in time to the decision to get intoxicated; we focus solely on the occurrent capacities of the person who is alleged to have consented. Consent is sometimes said to be a ‘continuing act’ and so there can be no prior fault analysis of consent.
There is, consequently, a clear tension between our attitudes to intoxicated responsibility and intoxicated consent. The tension can be morally justified in the sense that there is a prima facie plausible moral reason to reject the claim that intoxication undermines responsibility (i.e. to stop people from availing of an easy excuse for criminal activity) and to accept the claim that intoxication undermines consent (i.e. to protect people from be abused or taken advantage of), but this tension is what sets up the hypothetical.
For the time being I want to work with an abstract version of that hypothetical. This version focuses on two people of unspecified gender getting drunk to the point that their occurrent capacities for consent and responsibility are impaired, and then engaging in some form of sexual touching. I don’t want the genders or sex acts to be specified right now because I think our assumptions about the gendered nature of sex affects how we interpret the hypothetical. I won’t ignore those assumptions — I will talk about them later on — but I want to set them aside initially.
Given this set-up, how should we think about responsibility in a case like this? The following four premises would seem to apply:
- (1) A person shall be guilty of sexual assault if they sexually touch another person without that person’s consent.***
- (2) Two persons (A and B) are voluntarily intoxicated to the point that their occurrent capacities for responsibility and consent are impaired and have engaged in sexual touching.
- (3) Voluntary intoxication does not undermine responsibility; responsibility can be traced back in time to the decision to get intoxicated.
- (4) Voluntary intoxication does undermine consent if it impairs the occurrent capacities for volition and understanding; the validity of consent cannot be traced back in time to the decision to get intoxicated.
The question then is: What conclusion is implied by these four premises? Well, here’s what I think is implied:
- (5) Conclusion: Therefore A and B are guilty of sexually assaulting each other.
To me, this seems to be the most logical inference to draw based on this abstract form of the hypothetical.
2. What’s wrong with this analysis?
In the years that I taught sexual offence law, I don’t think anyone ever suggested this was the correct conclusion to draw in such a case. I’m sure other people have (probably many times). So I am not claiming that my analysis is original. It’s just that I can’t recollect anyone doing so in my classes. This suggests to me that this is not the most intuitively compelling way to think about this case.
But why not? Mutual offences are not inconceivable. It is possible for two people to be guilty of assaulting one another, and people sue and countersue in private law all the time. Nevertheless, the mind does seem to recoil from the notion that two people could be guilty of sexually assaulting one another. It doesn’t match our intuitive sense of justice. There must be a victim and a perpetrator; a doer and a done-to. In other words, there must be something wrong with the analysis I have presented. What could it be?
One obvious criticism of the hypothetical, as I have sketched it, is that it is highly artificial. I have stipulated that the case involves intoxication to the point of impairment on both sides. In real world cases there would probably be much more uncertainty about the effects of intoxication. This uncertainty could have a big impact on how we think about intoxicated consent in particular. If we accept that not all instances of intoxicated consent are invalid, then there is likely to be a dispute as to whether the intoxication was sufficient to undermine the validity of consent on one or both sides. Depending on the context, it is possible that a court or tribunal will be inclined to conclude that the capacity was not impaired and hence there was some valid consent and no offence. This, incidentally, is one reason why the worry about unfairness in the gendered-form of the hypothetical is often misplaced. When students raise the gendered hypothetical they often claim that it would be unfair to hold a man responsible for sexual assault/rape when both parties were voluntarily intoxicated. But in practice, this might rarely arise. My limited exposure to cases like this (primarily through media and academic discussions) is that juries are often quite willing to believe that a woman’s intoxication did not impair her capacity to consent (or, what is slightly different, that there is sufficient doubt about this to warrant finding the man not guilty). This is compounded by the fact that there is often great uncertainty as to what exactly happened during an alleged sexual assault/rape, with the evidence usually depending on conflicting testimony.
Another obvious criticism of the hypothetical is that in not specifying the nature of the sexual touching between the parties I overlook the asymmetrical nature of certain sex acts. The conclusion that both parties are guilty of assaulting each other only really holds if there is some sexual touching on both sides. But this might not be the case. It might be that there is one party that is active and another passive: one party that does the touching and the other party that gets touched. This is often how we interpret cases of penetrative sexual touching. If that’s how we interpret the facts of the case, then reaching the conclusion that one party is guilty of an offence but the other is not is more plausible. That said, we need to bear in mind that real world cases are likely to involve some dispute and uncertainty as to what exactly happened. This might leave the door open to the view that there was some touching on both sides. Furthermore, in cases of penetrative sexual touching, it would not be impossible for one party to be guilty of a penetrative sexual assault on the other (rape or assault by penetration) and the other party to be guilty of non-penetrative sexual assault on them.
In addition to above criticisms, someone could point out that I haven’t been entirely accurate in my summary of how voluntary intoxication affects responsibility. While it is generally true that it does not undermine responsibility, there are certain cases where it might. A distinction is sometimes drawn between crimes of basic intent (which depend on recklessness/negligence) and specific intent (which depend on specific knowledge and/or intention to do something specific). While voluntary intoxication does not undermine responsibility for crimes of basic intent it might undermine responsibility for crimes of specific intent (this is a matter left to the jury to determine from the facts). The problem then is that rape and penetrative sexual assault are, in part, crimes of specific intent: the defendant must have had the intent to penetrate the other party. So there may be some cases where voluntary intoxication can undermine responsibility for sexual assault. But this complication offers little reassurance to someone who thinks the hypothetical is puzzling since even in those cases it will still be possible to hold the defendant liable for a ‘lesser’ form of sexual assault that does not require specific intent.
Are there any other ways to resolve the dilemma at the heart of the hypothetical? There are two. One would be to address the inconsistency between our attitudes to consent and responsibility by dropping our commitment to either premise (3) or (4) of the argument given earlier. This would mean either accepting that intoxicated consent, at least when the intoxication is voluntary, is valid consent (i.e. there can be a prior fault analysis of consent) or that one cannot be responsible if intoxicated to sufficient degree (i.e. our attitude to responsibility should be the same as our attitude to consent). Neither of those options seems attractive given the moral rationales underlying our acceptance of (3) and (4): avoid giving the intoxicated a ready excuse and protect the vulnerable from abuse. But some people have defended these views. For example, Heidi Hurd once argued that intoxicated consent should be deemed valid if the intoxication was voluntary.
The other potential solution would be to argue that there is something missing from our understanding of consent that warrants treating intoxicated consent differently from intoxicated responsibility. Perhaps there is some third factor/capacity that is needed for valid consent that is impaired by voluntary intoxication? One possibility here would be to argue that consent requires a continuing act and responsibility does not. This is a common view when it comes to consent to sex. People often argue that consent must be ongoing and it can be withdrawn at any time. But I would say that this alleged ‘third factor’ is more puzzling than anything else. Not all consent involves an ongoing act or the possibility of withdrawal (e.g. consent to general anaesthetic) and, more importantly, why should consent require ongoing acts and responsibility not? Why treat those things differently. Another possibility is suggested by Alan Wertheimer (whose arguments I considered in more detail previously) who once argued that consent required a deeper expression of the agent's will than responsibility and hence this justified the asymmetrical approach. Now, I'm not sure why we should accept that there is a deeper expression of will in the case of consent, but in any event this argument only works if we assume that the occurrent capacities for responsibility are not impaired at the time of the offence. The problem I am pointing out is that even when they are impaired there is a tendency to trace responsibility back to the decision to get intoxicated. Why do we think it is okay to do that for responsibility but not for consent? I don’t know if there are any other third factors, but it would be worth exploring.
In conclusion, the case in which both parties to an incident of sexual touching are voluntarily intoxicated to the point that their capacities for consent and responsibility are impaired presents what I think is a genuine puzzle, at least in the abstract case. The puzzle can be resolved by arguing that both parties are responsible for sexually assaulting each other, but this doesn’t seem to be an intuitively compelling solution. In real world cases, it may be possible to avoid the puzzle by claiming the facts favour one interpretation of the case over another, but if they don’t (and if there is sufficient doubt about the correct interpretation) we have to confront the tension in our attitudes to consent and responsibility.
* I know that the language used to describe sexual offences is highly politicised. Some people object to using terms like ‘sexual’ or ‘sex’ to refer to non-consensual acts. They argue that these things must be referred to as rape or assault. I use the term ‘sexual touching’ for two reasons (i) this is the language used in law and (ii) until you determine guilt or innocence it would be inappropriate to refer to these acts as rape or assault without the additional qualifier of ‘alleged’ or something of that sort.
** In criminal law, the UK is divided into three separate jurisdictions. The only jurisdiction with which I am familiar is England and Wales. Nevertheless, I imagine the position on drunken consent is similar in the other two jurisdictions.
*** Technically, the legal rule is more complicated than this because the guilty party would also have to lack the ‘honest’ or ‘reasonable’ (the standard varies) belief in consent. I overlook that here for the simple reason that this is not immediately relevant in cases of sufficient intoxication. In other words, if someone argued that their intoxication caused them to believe the other party was consenting, this would not be accepted as a legitimate excuse.