One thing that concerns me about sexual assault court cases is the following:

In sexual assault cases:
an intoxicated person is said to be unable to give legal consent to intercourse.

In other criminal cases:
an intoxicated person cannot use drunkenness as a defense against their actions.

I find it contradictory that a person who is unable to make decisions about their own sexual behavior due to intoxication may still be held accountable for criminal acts committed during that time. Surely, if a person cannot make decisions about their own body while intoxicated, they should also not be held responsible for crimes committed during that same time period?

How do prosecutors typically handle cases involving alcohol? Is there a specific threshold for determining when someone is too drunk to be held responsible for their actions? Do prosecutors rely on blood alcohol level tests to determine a person's level of intoxication, or do they make a judgment based on the circumstances of the case?

  • 1
    Are you referring to the victim or the offender being drunk?
    – user35069
    Dec 6, 2022 at 12:13

3 Answers 3


I will use Washington law to lay the landscape for a rape charge. First degree rape is sexual intercourse with another person by forcible compulsion, either with kidnapping, (apparent) threat of a deadly weapon, beating the victim, or feloniously entering the building of vehicle where the victim is. This is not the case under discussion. What does potentially apply is second degree rape, which is sexual intercourse by other types of forcible compulsion, or (b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated, or various similar descriptions of diminished capacity (a developmental disability plus perpetrator supervisory authority, etc). Subparagraph (b) is crucial here, and we turn to the definitionL

"Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause.

Also to be clear on "forcible compulsion",

"Forcible compulsion" means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped

In the case of intercourse with an intoxicated person, the government must prove that the victim's condition prevented them from understanding the nature or consequences of intercourse.

Now compare the law in Minnesota, otherwise analogous, but with a different definition of "mentally incapacitated" (subd. 7):

"Mentally incapacitated" means:

(1) that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration; or

(2) that a person is under the influence of any substance or substances to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person's conduct.

(italics indicate the differences of interest). The second clause in the Minnesota definition states the same idea as the Washington definition, but also adds "inability to control" as a form of incapacity. The first clause states a different standard of inability, lowered from "incapable of deciding" to "lacking judgment", but only when the condition arises without the person's consent.

The point here is that prosecution and conviction do not just depend on a generic and universal concept of "consent", it very much depends on the exact words selected by the legislature in establishing these laws. Minnesota's legislature made one set of choices, Washington's made another.

The Washington legislature made another choice when it came to intoxication: per RCW 9a.16.090,

No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his or her intoxication may be taken into consideration in determining such mental state.

So an voluntarily drunk person cannot defend themselves saying "I was drunk, I didn't know what I was doing", but intoxication can be relevant to the important question of "knowledge" as an element of culpability. This is a principle of law specifically set by the legislature.

Prosecutors don't decide based on a hypothetical "how drunk" scale, instead they compare the facts with what the applicable law says. There is no "knowingly" requirement for prosecution for rape, therefore one cannot argue that because of intoxication the accused "lacked knowledge" of their act owing to intoxication. Being intoxicated according to the .08 driving standard does not (generally) render a person incapable of understanding "intercourse".

  • On the other hand, if an alleged perpetrator of a sexual assault offense involving sexual contact (e.g. groping) rather than penetration, was passed out drunk and rolled over in that state onto someone on the floor below them touching the person they fell on in a place that would be unlawful sexual contact if done consciously, that would not be a sexual assault crime under WA law since it eliminated the mens rea of at least recklessness or a voluntary act.
    – ohwilleke
    Nov 28, 2022 at 23:32

In Canada this distinction is explained by the vast difference between (a) the level of mental functioning required for the capacity for consent and (b) the level of mental functioning required for the basic mens rea element of intention to touch the complainant while knowing or being reckless or wilfully blind as to the absence of consent.

This is because sexual assault has been characterized as a general intent offence. The accused need not have any purpose in mind. They need only to have the ability to take physical acts and the ability to consciously control and intend those acts. They do not need to understand the sexual nature of what they are doing or specifically intend to sexually assault the complainant. See Leary v. The Queen, [1978] 1 S.C.R. 29. Consent, on the other hand, is a completely different concept from the ability to physically intend and execute actions; consent is about understanding.

Actus reus

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent (R. v. G.F., 2021 SCC 20, citing R. v. Ewanchuk, [1999] 1 S.C.R. 330).

Capacity to consent is a precondition to consent and it has four requirements (R. v. G.F., 2021 SCC 20). The complainant must be capable of understanding four things:

  1. the physical act;
  2. that the act is sexual in nature;
  3. the specific identity of the complainant's partner or partners; and
  4. that they have the choice to refuse to participate in the sexual activity.

If the complainant is unable to understand even one of those things, they lack the ability to subjectively consent, and this establishes the third prong of the actus reus.

Mens rea

The mens rea requirement is that the Crown must show that "(i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent" (R. v. G.F., citing Ewanchuk). However, in order for the accused to be able to rely on a defence that they mistakingly believed that the accused had consented, they must be able to show that they had an honest but mistaken belief in communicated consent (R. v. Barton, 2019 SCC 33). This requires the accused to have taken reasonable steps to ascertain that the complainant was consenting. An intention to touch, combined with failure to take reasonable steps to ascertain consent, will establish the mens rea for sexual assault. None of this is negated by the accused's intoxication.

Extreme intoxication defence is likely not available from alcohol alone

The only circumstance in which the accused's intoxication can provide a defence to sexual assault (or any general intent offence) is where the accused has been rendered "unaware of, or incapable of consciously controlling, their behaviour" (Criminal Code, s. 33.1(4)).1 This is intoxication so extreme that it is "akin to automatism" (R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Brown, 2022 SCC 18). The Court, Parliament, and expert toxologists have suggested that "alcohol alone is unlikely to bring about the delusional state akin to atomatism"; "it is not clear that extreme alcohol intoxication causes non-mental disorder automatism as a matter of basic science" (R. v. Brown at para. 4). The Supreme Court in Brown "specifically [left] intact the common law rule that drunkedness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault."


  • the capacity to consent can be negated by a level of intoxication that impairs understanding of critical elements of the sexual touching
  • the mens rea for sexual assault cannot be negated by intoxication unless it is so extreme that the accused is incapable of conscious control of their behaviour; akin to automatism; a degree of intoxication that people doubt can be achieved by alcohol alone.

1. And there are even further barriers to the use of this defence. If the accused's intoxication was self-induced and they departed markedly from the standard of care that would be expected of a reasonable person in their consumption of the intoxicating substances, even the defence of extreme intoxication will be unavailable. See Criminal Code, s. 33.1.


In a rape case, it doesn’t matter that the other person couldn’t make a decision: What matters is that consent was required and not given.

If the accused says “we should have sex” and the other party says “yes” that’s consent. If they say “no” that is not consent. If they say “let me think about that”, that’s not consent. If they ignore you, that’s not consent. If they would like to have sex but are too drunk to say “yes” that’s not consent. If they don’t want sex but are too drunk to say “no” that’s not consent.

All cases except saying “yes” are not consent and therefore rape. It doesn’t matter if no consent was given because of drunkenness, what matters is no consent was given. Not saying “no” isn’t consent.

(PS Saying “yes” is not consent if the victim was forced, mentally handicapped, too drunk or under drugs, too young etc)

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