Consenting To Sexual Activity While Being Intoxicated

October 20, 2022


The Criminal Code Of Canada explains sexual assault as something that incorporates all unwanted sexual activity. This entails activities from unwanted sexual grabbing, kissing, and fondling to rape.

The code clearly states that sexual activity is only legal when both parties consent. But what is consent?

Canada’s Criminal Code s. 273.1 defines consent as

“The voluntary agreement to engage in the sexual activity in question.”

This law mainly focuses on what the person was thinking and feeling at that specific moment.

Talking about this, Janine Benedet, a law professor at the University of British Columbia’s Peter A. Allard School of Law, said,

“The question is whether the person in their own mind wanted this sexual activity to take place.”

Further explaining the law of consent, the Criminal Code of Canada states:

“No consent is obtained when the agreement comes from someone other than the complainant, the person is incapable of consenting or is induced by the accused abusing a position of trust, power or authority.”

Consent is also absent when someone,

“Expresses, by words or conduct, a lack of agreement to engage in the activity” or if the complainant, who previously consented, expresses “a lack of agreement to continue to engage in the activity.”

All these aspects of the law are pretty clear. But what about consent when a person is intoxicated? How much intoxication makes a person “incapable” of consenting? Can a person actually consent to sexual activity when he/she is drunk?

That is what we will be discussing in this blog. As one of the best sexual assault defence lawyers in the locality, we receive several queries related to “consenting to sexual activity while being intoxicated” every day.

Hence, we have decided to explain the process via this blog to raise the necessary awareness.

Incapacity Is More Than Mere Intoxication

It is extremely important to understand that Incapacity is more than mere intoxication. By analyzing and reading through different sexual assault proceedings, it is evident that our courts allow a drunk person, even if they are very drunk, to consent to sexual activity.

However, in the case that the intoxication is so extreme that the individual is incapable of consenting, it is considered incapacity.

Incapacity is defined as,

“A person not being able to make a voluntary and informed decision about whether to partake in sexual activity.”

Engaging in sexual activity with a person who is literally “Out of it” is sexual assault.

The capacity of consent to sexual activity is only retained for as long as the individual is conscious.

In December 2018, the Criminal Code’s definition of consent to sexual touching was revised. One of the amendments under Bill C-51 added a provision to the Criminal Code stipulating that an unconscious person is incapable of consenting. This section states,

“no consent is obtained if … the complainant is unconscious.”

Proving Incapacity To Consent

To be able to consent to a sexual activity, the person in question should have the capacity to understand the following:

  • The physical act
  • The nature of the act, i.e., it is a sexual act
  • The identity of the partner
  • That he/she has the choice to refuse the act

To prove the incapacity due to intoxication, the crown usually checks the blood-alcohol measurements to estimate the level of intoxication.

However, in case, scientific evidence is unavailable, the crown might resort to the following indicators:

  • Significantly slurred speech
  • Non-responsiveness
  • Impaired balance
  • Vomiting
  • Loss of bladder or bowel control
  • Immobility
  • Memory loss or blackout

At this point, it is important to understand that the onus of ensuring that the consent is on the person who is initiating or pursuing the sexual activity.

If the other person says no to any sexual activity, the person initiating the activity cannot say that they assumed consent based on his/her own intoxication, or they chose to ignore indications of no consent.

About Slaferek Law

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