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There are a few important things to remember when we’re talking about sexual activity, consent and intoxication due to the use of drugs or alcohol.
If a person is intoxicated, they may not be able to consent to sexual activity. Engaging in sexual activity with a person who can’t consent is sexual assault. If a person is passed out or passing in and out of consciousness, they can’t consent. Even if the person is conscious the entire time, they may still be too intoxicated to consent.
On the other hand, individuals cannot generally use their own drunkenness as an excuse for not getting consent. Under the law, self-induced intoxication, including from the use of alcohol or drugs, is not a valid defence to a charge of sexual assault. Being drunk or high can make obtaining consent confusing, but it is NOT a defence.
Failing to check for clear consent and failing to take reasonable steps to ensure consent is present because that person is too drunk or too high is not excusable. The Supreme Court has said this many times and it is also part of the Criminal Code.
Even where a person is so intoxicated that they lose voluntary control over their actions (called automatism) they can still be found guilty of sexual assault if they did not act reasonably with respect to consuming whatever they consumed that put them in that state. Situations where automatism will provide a defence are extremely rare, and even rarer when we’re talking about alcohol rather than drugs.
It’s also important to understand that not remembering something because you were intoxicated does not mean you were acting involuntarily and does not provide a defence to a charge of sexual assault.
Anyone can be the victim of sexual assault, regardless of age, race, gender, sex, or status. It can happen morning, noon, or night. It can happen with a stranger, a family member, or a friend. Sexual assault is never okay and it’s never the victim’s fault.
If you or someone you know has been sexually assaulted, it is important to understand that there is no one right way to respond. Victims need support, but what is helpful to one victim may not be what another wants or needs. There are different options available, including contacting the police, a friend or family member, a school counsellor or a sexual assault centre or hotline, such as the Kids Help Phone. Victims don’t have to feel alone. Help and support is available.
