The laws around intoxication are less straightforward than some other consent laws. In this article, I will outline the Canadian laws around consent and intoxication, but I will also talk briefly about the implications of this type of consent. I will not be addressing topics such as drugging, spiking drinks or other types of tampering, because in all cases sexual contact after that is always sexual assault.

Legally, a person can consent to sexual contact while intoxicated. However, sometimes one’s intoxication is so extreme that they are incapable of consenting. Incapacity means that a person cannot make a voluntary and informed decision about whether to partake in sexual activity. Here are some scenarios in which a person would be too intoxicated to consent: They were asleep or unconscious for any part of the sexual activity, they were so intoxicated that they could not recognize the person they were engaging in sexual activity with, they were so intoxicated that they did not realize they were partaking in sexual acts, they were so intoxicated that they did not understand they could say no. To convict someone of sexual assault in cases of intoxication the Crown relies on blood-alcohol measurements or estimates to determine how intoxicated a person was at a particular time. But scientific evidence is often unavailable. In these situations, the Crown may introduce other indicators of incapacity. Such indicators might include but are not limited to: significantly slurred speech, non-responsiveness, impaired balance, vomiting, loss of bladder or bowel control, immobility, memory loss or blackout.

Determining what is and isn’t sexual assault in the legal system is hard to decipher. Just because someone was not convicted of sexual assault does not mean it did not happen, and it does not mean that there were not things that went wrong during the sexual interaction. To put it quite plainly: Doing anything sexual with someone whose judgment is affected by drugs or alcohol can cause serious harm. If you want to do something sexual with someone who’s been drinking alcohol or using drugs, you must be very careful that their thinking is clear. They must be able to decide freely if they want to be sexual with you and be able to communicate their consent. If you are not sure whether they are thinking and communicating normally, wait until they are sober to check for consent.

This is a very tough subject and there is not a clear-cut answer to what is “too intoxicated”. To add some perspective, I would like to offer a much over-simplified but quite transferable analogy: If you are too drunk to drive you are too drunk to ride! I draw this comparison as a marker of what is too intoxicated to make sound decisions. In B.C. you can lose your driving privileges if your blood/alcohol concentration is ‘Over .05’. At this point, you begin to exhibit loss of small-muscle control, such as being able to focus your eyes, and you can have lowered alertness. At 0.08 Blood Alcohol Content, you will usually exhibit poor muscle coordination, loss of balance, slower reaction time, slurred speech, loss of acuity in vision and hearing, difficulty in detecting danger, and impaired judgement, self-control, reasoning, and memory.

 I draw this comparison to illustrate that if someone is considered too intoxicated to make sound decisions in motor vehicle operation, we could probably assume that overall decision-making is poor. So I offer this as a potential question to consider about yourself or your partner if you are thinking about engaging in sexual activity while intoxicated. Am I/is my partner sound of mind enough to drive right now? Am I/ is my partner making sound decisions? Am I/ Are they exhibiting any clear signs of intoxication right now? It is also your job to determine whether your partner is too intoxicated to have sex! Even if your partner is saying yes to sex, if you believe that they are too intoxicated to continue, it is your job to stop it.