Can You Consent To Sex If You’re Drunk? The Answer Seems Clear, But Not Everyone Agrees

In March 2021, the Minnesota Supreme Court unanimously ruled to overturn a man’s conviction of third-degree criminal sexual conduct because the victim, a woman, was voluntarily drunk at the time of the assault. Understandably, this ruling sparked backlash. “It’s outrageous that in 2021, there are still laws on the books that say if a person voluntarily drinks alcohol, [the perpetrator] can’t be held responsible for a sexual assault,” Melissa Hoppmeyer, a special victims prosecutor who hosts No Grey Zone, a podcast about consent, tells Refinery29. “It’s infuritating and it’s outrageous, and I think it just perpetuates rape myths and creates a culture in our society where sexual predators continue to walk the streets without being held accountable.”

That same month, vlogger David Dobrik responded to claims that in 2018, he and his Vlog Squad had used alcohol as a weapon to coerce young women into sexual activities with squad member Dominykas Zeglaitis. The woman accusing him, identified as Hannah, spoke to Business Insider about her experience. She said that Dobrik and his friends gave her enough alcohol to cause her to black out; at the time, she was 20, under the legal drinking age. “There were definitely times she was drinking it of her own volition, but there were also times where [Zeglaitis] was clearly trying to get her to drink more,” the woman’s friend, who was present that night, told Business Insider. No charges were ever filed against Zeglaitis.

These two events, while both disturbing, are vastly different. But there is a common denominator: the presence of alcohol. About half of all sexual assaults involve alcohol, according to the National Institute of Alcohol Abuse and Alcoholism. Hoppmeyer says that it’s the most common drug used to carry out sexual assault, more so than rohypnol (also known as roofies). But despite how often alcohol plays a role in sexual assault, it’s influence on consent isn’t well-understood — both within the legal system and outside of it.

When I was in college, I heard the same message again and again: People cannot give consent when they’re drunk. But I saw how that statement was often met with skepticism. Sure, the scoffers seemed to say, there’s a line at which a person becomes too drunk to consent to anyone, when even a “yes” can’t qualify as consent because the person saying it is clearly not in their right mind. But where, exactly, is that line? On the average weekend night anywhere in the U.S., people are going out, drinking, and having sex. When does that become a problem?

It’s hard to say for sure. “As a culture, we don’t understand consent,” Hoppmeyer says. “I don’t think that there’s enough consent education that happens, and that’s especially true when you talk about alcohol.” The scenarios she puts forward during our conversation remind me of the hypotheticals I’d hear in an ethics class: What if both parties are drunk? What if both parties are drunk, but person A is much, much more drunk than person B? What if person A had enough alcohol to be tipsy, but not wasted, and person B is sober? And a big one: What if person A wanted to have sex with person B, but then got too drunk to consent, and person A had sex with them anyway?  “There’s such a misconception of, well they’re in a relationship and they’ve had sex before, so what does it matter that this time she was passed out when he had sex with her? When really, it does matter. People have autonomy and they have the right to say no one time and say yes a different time, and when you are incapacitated you just don’t have that ability,” Hoppmeyer says.

Whether or not a person can legally consent in the above scenarios is at least somewhat dependent on the details of the situation and the state laws. Legal protections vary widely from state to state, which adds to the confusion of how alcohol impacts consent. For instance, most states have sexual assault laws that protect people who were involuntarily intoxicated at the time of the assault, meaning they had been given alcohol or drugs against their will or without their knowledge. But as was seen in the Minnesota Supreme Court case, a surprising number of states do not protect people who were voluntarily intoxicated. Minnesota law, for instance, states that “A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.” Except, its definition of “mentally incapacitated” is “a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement,” (emphasis ours), which is why the state Supreme Court ruled to overturn the aforementioned conviction.

In April, Minnesota Rep. Kelly Moller sponsored a bill that would change the definition of “mentally incapacitated” to remove this gap in Minnesota state law — and on June 30, the bill was passed, and is expected to go into effect by early fall. The fight is far from over, however: 28 other jurisdictions have similar laws, reports Newsweek.

When it comes to how alcohol affects one’s ability to drive, there’s a clear and measurable legal threshold: a minimum blood alcohol level, as measured by a breathalyzer. There’s no such legal limit for consent and sexual assault. But, as Hoppmeyer points out, something can be “not criminal” while also being inappropriate, harmful behavior. “We know that even though someone may have gotten consent by law, that doesn’t mean that the other person that’s engaged in that behavior feels as though it was consensual. It can be a little tricky,” says Amy Culp director of Sexual Harassment & Rape Prevention Program (SHARPP) at the University of New Hampshire. This is why education is so important. “We teach — in some schools, though not everywhere — sex education. But we don’t teach consent and I think we need to teach consent,” Hoppmeyer says.

SHARPP, which serves students, faculty, and staff, aims to do just that, through in-person advocacy, and prevention, outreach, and education programs — one of which is called Wildcats Get Consent. Culp tells Refinery29 that this program aims to explain what consent is, both at UNH and the state level, “but also recognizing that we’d rather [students, faculty, and staff] know healthy, respectful communication.”

SHARPP uses New Hampshire state law to define consent in their educational materials, although the actual teaching they do on the topic — especially when talking about how alcohol affects one’s ability to consent — aims to get across a broader understanding of what the term really means. “Where we come into play is that we can look at [the law] through our community standards, which is our conduct office, and say that, yeah, this language isn’t really clear or it’s not very trauma-informed or it’s not very survivor-friendly,” she says. Culp explains that their outreach team tries to define what consent looks like in relationships, but also what a healthy hookup is, too. ”What are the components of doing that and what does it look like — because we’re actually finding that a lot of students come here and they just really have no idea,” Culp says.

On SHARPP’s Wildcats Get Consent website, there’s a section devoted to alcohol. It describes signs that someone is unable consent to sex: They’re too drunk to stand on their own, they’re slurring their words, they seem confused or unfocused, they’re passing out, or they’ve been sick. “Remember, if you are asking yourself if someone is sober enough to consent, it is best to err on the side of caution,” the materials state.

SHARPP isn’t the only consent education platform being implemented on college campuses, or across the U.S. in general. There are a number of workshops, programs, and organizations out there, such as Speak About It, a consent education and sexual assault prevention non-profit based in Maine that offers a range of education-based programs; Culture Of Respect’s RealConsent workshop for men; and The Sex Talk, a program put on by Day One NY.

Educating people about consent can also reduce victim-blaming, which Hoppmeyer says is still prevalent — especially when alcohol is involved. “There’s still a lot of, she should’ve known better, she shouldn’t have gone to his room, or she shouldn’t have asked him for help,” Hoppmeyer says.  (“I say women,” she adds, “because we represent the vast majority of sexual assaults, but obviously men are also sexually assaulted and the LGBTQI+ community has a high rate of sexual assault as well.”) If a person is missing memories after being assaulted while drunk — which can be due to drinking or the traumatic experience, or both — that can be another thing used to cast doubt on their story.

Both Culp and Hoppmeyer are hopeful that by continuing to have conversations about what consent is, what it looks like in all situations (including when alcohol has been consumed by one or both parties), and how exactly to talk about it and ask for it, we can one day influence the way our lawmakers and our justice system views and handles sexual assault cases. But normalizing and clarifying consent would also mean that there would be fewer cases to prosecute in general. “There are a lot of studies that say consent education will reduce the number of sexual assaults, because people will understand it,” Hoppemeyer says. “I think that’s really what I would want people to know and advocate for.”