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Intoxicated Consent and Intoxicated Responsibility: Is there a paradox?

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Once upon a time, I used to teach criminal law. For me, the most challenging section of the course was invariably the section on sexual offences. Some students would find the subject uncomfortable, perhaps even traumatising. Others, though interested and engaged, would find it difficult to articulate their thoughts in a precise way. There would be occasionally awkward discussions about the nature of sexual consent and responsibility, as well as contentious debates about the gendered assumptions that continue to underlie the law.Every year, I would teach tutorial classes in which students were asked to consider the correct legal approach to real and hypothetical cases of sexual assault and rape. Every year, I found that one kind of hypothetical case would generate the most heated discussion, with the debate usually (though not always) breaking down along gendered lines.The case would be posed by one of the students (I don’t believe I ever brought it up). The case would involve a man and a woman, both of whom were heavily, but voluntarily, intoxicated. The man and woman would then engage in some kind of sexual* touching. This could be penetrative or not; the exact form did not matter too much to the hypothetical (though see the discussion of this issue below). If it were penetrative, it would be assumed that the man had penetrated the woman. The question would then be posed: was there a legally chargeable sexual assault or rape?This hypothetical would generate heated discussion because (a) the general presumption in law is that voluntary intoxication does not negate or undermine criminal responsibility and (b) there is an (emerging) social norm to the effect that you cannot consent to sex if heavily intoxicated. When these two things are combined with the general presumption that rape and sexual assault are usually male-on-female crimes, it would yield the conclusion that what you have here is a case in which the man is guilty of sexually assaulting or raping the. . .

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News source: Philosophical Disquisitions

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