Nunatsiaq Online
COMMENTARY: Nunavut March 24, 2017 - 1:08 pm

Legal Ease, March 24

Too Drunk for Sex

JAMES MORTON

Sexual activity, when conducted in the context of mutual respect, is a very good thing.

But, as we know all too well in Nunavut, sexual activity without consent is very wrong indeed. Unless there is consent, sexual activity is sexual assault; a very serious criminal offence.

Consenting to sexual activity legally requires two things. A person must actually consent, that is agree, to the sexual activity. In addition, the person agreeing must be able to agree. 

A five-year-old, for example, cannot agree to any sexual activity. Someone in a coma cannot agree to sexual activity. There must be an adult operating mind to agree to sexual activity.

More specifically, in order to consent to sexual activity, someone has to be old enough for sex (generally 16 with some exceptions) and have the mental capacity to comprehend and agree to the sexual activity.

That means that sometimes, someone who has been drinking cannot consent to sexual activity. For example, someone who is passed out drunk cannot consent to sex.

That said, intoxication falls on a spectrum. Someone who has had a beer and nothing else is just as able to consent to sexual activity as someone who is totally sober.

There are people who (sadly) spend most of their lives a bit intoxicated—so long as they appreciate what they are doing, they can consent to sexual activity.

Poor decision making, memory loss, or loss of inhibition or self-control due to alcohol does not mean consent is impossible. People often have sex when they have been drinking. That’s okay so long as they understand what they are doing and agree to it.

But they have to be sober enough to know what they are getting into.

Having said that, you do not have to be passed out or close to passed out to be unable to consent. The capacity to consent requires more than simply the, “baseline physical functions.”

If someone is so drunk that they cannot properly comprehend the nature of the sexual activity, then they cannot give consent.

What this means practically is that if there is any doubt at all that the person knows what’s happening, then there should not be any sex.

Put another way, if you are with someone who is pretty drunk, your job is to make sure they are safe somewhere and to leave them alone to sleep off the alcohol.

Behaving this way is not just the law; it’s also the decent thing to do. If someone is drunk, it’s wrong to take advantage of them and that would be so even if the law was different.

Of course, just because a person is old enough and sober enough to agree to sexual activity does not mean they actually agree. You have to be sure what is happening and to agree to it before doing it.

The definition of consent requires people to give actual active consent throughout every phase of the sexual activity; consent cannot be assumed, it must be given.

If someone wants to have sex with you, they will;  but they have to be sober enough to be able to!

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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