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Drinking and sex: What does too drunk to consent mean?

15 June 2016, 19:48 Jennifer Thorpe

Many of you will have read the powerful victim impact statement delivered by the survivor in the Brock Turner rape case. A great deal of this case focused on how drunk the survivor was at the time of the incident – in this case so drunk that she was unconscious. 

But, as she rightly points out, being drunk is not a crime, and alcohol has never raped anyone.

South African law is very clear that what happened in this situation was rape. In terms of the Sexual Offences Act (Act 32 of 2007), any act of sexual penetration without consent constitutes a rape. 

Section 3 of the Act further specifies that consent means voluntary and un-coerced agreement, and that in certain circumstances it is not possible for someone to give consent. One of these conditions is when you’ve been drinking:

(3) (d) Where the complainant is incapable in law of appreciating the nature of the sexual act including where the complainant is, at the time of the commission of such sexual act (iii) in an altered state of consciousness including under the influence of any medicine, drug, alcohol, or other substance to the extent that his/her consciousness or judgement is adversely affected.

The implication of this is clear: someone who has been drinking enough to alter their judgment or consciousness cannot consent to sex in law. The Sexual Offences Act doesn’t specify a blood alcohol limit, it just specifies “to the extent that his/her consciousness or judgment is adversely affected.” However, if you report a rape when you are still inebriated a health care practitioner may take a blood alcohol sample for the case.

Most of us recognise that it makes sense that we’re not allowed to drive, or get a tattoo whilst drunk, because these actions could cause permanent damage. So why can’t we admit that drinking impairs someone’s ability to consent to sex? And that sex without consent is rape?

Perhaps it’s because drinking is such a large part of South African culture that many of us ignore the very real impact it has on our ability to make good judgements and decisions. According to Dr Izak Loftus, even less than half a glass of wine can suppress the functions of the frontal lobes of your brain which control your inhibitions, and your ability to make good judgements.

Does that mean that you and your partner can’t have a few glasses of wine, and decide you both want to have sex without it being legally classified as rape? 

Remember, consent is the most important element here. Sanja Bornman, Attorney from the Gender Equity Programme at Lawyers for Human Rights, clarifies what the law intends:

“If a person is so drunk that it's not totally clear to you whether they want to have sex with you, don't have sex with them. If you are so drunk that it's not totally clear to you whether a person wants to have sex with you, don't have sex with them. Rape is rape whether you were drunk or not. The law does not excuse those who drink themselves into such a state that they cannot tell the difference between consent and its

She also suggests watching this video, for a useful way to understand consent. Sexual urges are not uncontrollable. If you want to sleep with someone and they’ve been drinking, why not wait until you’re both sober and make sure that they want to sleep with you too?

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- Women24

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