“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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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