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Home > Articles > “I’m Too Drunk to Consent to Sex. But Not Too Drunk to Assault You”

“I’m Too Drunk to Consent to Sex. But Not Too Drunk to Assault You”

Posted: Tue, November 27, 2012 | By: P. Tittle



According to the Canadian Criminal Code, (self-induced) intoxication is no defence against charges of assault (33.1): if you’re drunk, you’re still able to form the general intent to commit said assault.

And yet, with regard to the sub-category of sexual assault, belief that someone is consenting is cancelled if that someone is intoxicated (273.1(2)): if you’re drunk, you can’t consent to sex.

So if you’re drunk, you’re capable of forming the intent to assault, but you’re not capable of forming the intent to have sex? Given that it’s mostly men who do the assaulting, and it’s mostly women who do the consenting (and given, it’s my guess, that the lawmakers had men in mind for 33.1 and women in mind for 273.1(2)), is this some sort of ‘protect the weaker sex’ double standard?

Hey, if we expect men to foresee the effects of alcohol and to be responsible for their behavior while under its influence, we should expect the same of women. Yes, it may be morally scuzzy to have sex with someone who’s drunk (and got that way of her own free will), climbing all over you and moaning ‘do me’, and you suspect that if she were sober she wouldn’t be quite so willing – but you’re not her legal guardian. ‘Yes’ means ‘yes’ and if she regrets it the morning after, that’s her headache. Doing something really stupid is the risk you take when you get drunk (unless you’ve got a dependable designated sober friend with you).

The only way the difference can be justified is if in both cases we consider the man to be the agent, the only one doing the deed. In the first case, that’s fine. But in the second? Well, okay, if she’s the one done to, I guess, maybe, he’s the only one guilty of a deed. But the tricky part is that then the legality of the deed depends on her behavior. If she, drunk, does to him, she’s the one guilty of assault while intoxicated.

If while drunk she says I can borrow her car, and I do so, am I really justly accused of theft? Am I my sister’s keeper? She said I could. Do I have to second guess her? She may well say I can borrow her car when she’s sober too. Or not. Am I supposed to know?

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Comments:

Don’t have facebook, so commenting here.

273.2 makes no reference to the state of drunkeness of the person making the accusation rape, only that the rapist cannot claim drunkeness as a defense for having having raped someone else.

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

  (a) the accused’s belief arose from the accused’s

      (i) self-induced intoxication, or

      (ii) recklessness or wilful blindness; or

  (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

By armourdefense on Nov 15, 2012 at 9:55am

This double standard is called feminism. The City of Saskatoon had an anti-rape poster campaign which was base on the same hypocrisy
http://antifeministsite.blogspot.com/2011/10/saskatoon-bars-cater-to-feminist.html
Men are held accountable for their actions when they are drunk AND they are held accountable for a women’s actions when SHE is drunk.

By Lamar on Nov 15, 2012 at 1:08pm

A correction to my previous post where I cited the wrong section, from justice.gc.ca what I believe to host the the most recent version of Canadian law 273.1(2) is

273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

copied from http://laws-lois.justice.gc.ca/eng/acts/C-46/page-133.html?term=273#s-273.1

But I have found second hand references to intoxication being treated as you mentioned in this section of law, but not a direct reference to Canadian government source in those, so one of us could be using an old version.

By armourdefense on Nov 15, 2012 at 1:58pm

While it may not be explicitly mentioned, one could make the case that the complainant is incapable of consenting to the activity due to intoxication, under 273.1(2b) It’s reasonable to assume, although this is speculation on my part.

By Warejackal on Nov 15, 2012 at 4:22pm

Lamar, what definition of feminism are you using?

By ptittle on Nov 15, 2012 at 8:38pm

I think most girls aren’t moaning do me when they are extremely drunk and confused. Drunk people make bad decisions but sex is two people’s decision. And if you are thinking would she have sex if she was sober, then back the fuck off and have some respect. Give her your number. Let her make that decision when she is thinking clearly.

How about if she has told this person sober many times, she didn’t want sex with him and then he waits until she is emotionally upset and totally out of her mind drunk and he is sober? Is that okay? Who wants to have sex with someone who is crying and puking and can barely stand? Please tell me what kind of HUMAN MAN OR WOMEN does that? It’s sick. This article is sick and the idea of “feminism” being to blame. I believe this goes for males and females, because it can happen to males too.

I believe you do have some points tho. Girls have sex and say they were raped because of regret sometimes, but I believe there is a difference. If a girl isn’t that drunk and has sex it’s not rape unless she says no. If she is the one throwing herself at him I don’t believe it’s rape unless she is really sick and blacking out. It’s sad some girls will go to police because of this and it makes people not take people who are really raped seriously. Also if both parts are drunk then no one is to blame. 

When you’re drunk you’re easily talked into things you won’t do. You can   leave your car keys at home so you can’t drive, but you can’t tell the rapist to stay home so you don’t get raped. If someone is drunk and you are sober or aren’t feeling the effects of the alcohol you can stop this. You can put this girl in a taxi or find her friends to take care of her. If you are sober you should be responsible for her or his safety or at least the kindness to fuck off.

By Agirl on Feb 22, 2013 at 10:06am


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