Sexual Assault – Can You Give Consent When You Are Drunk or High?

Drugs and alcohol impact the normal, everyday functioning of the brain such as a person’s ability to make decisions, including the ability to decide whether they want to participate in sexual activity with someone or not. Therefore someone who is drunk or high, may not be able to legally give informed consent before sex or when engaging in sexual activities.

Even if someone seems eager to engage in sexual behaviour they could be considered too intoxicated to give consent. Anyone who is sexually involved with a person who is under the influence of drugs or alcohol is possibly committing sexual assault if consent from both parties is not given.

When it comes to consent, the law focuses on the thoughts and emotions of the complainant during the time of sexual activity. The defence could argue that the accused took “reasonable steps” to obtain consent or that the complainant was not intoxicated enough to nullify his or her ability to consent.

However, the issue lies in how intoxicated a person needs to be before they are incapacitated and rendered incapable of consenting with words or actions. With regards to the courts, there is a fine line between sober enough to consent and drunk enough to be considered a sexual assault.

What Is Sexual Assault?

Sexual assault is any sexual act that someone does not and/or is unable to consent to including penetration, oral sex, incest, as well as unwanted and inappropriate touching. Sexual assault does not have to involved alcohol or drugs but it is more likely that it will occur while someone is under the influence.

If a person is forced or tricked to give consent by means of “intimidation or fraud;” or is legally deemed unable to give consent due to his or her age or mental capacity that is also considered sexual assault and in more serious circumstances, rape.

What Is The Definition Of Consent?

Consent is when someone freely and voluntarily, without coercion, intimidation or threat, agrees to sexual intimacy. This is known as a free agreement with both parties having the responsibility to uphold this agreement. Non-consensual sexual activity including kissing and caressing is against the law. Consent must also be given each and every time sexual activity occurs, no matter what type of relationship the person is in.

Consent cannot be assumed. Each person involved in sexual intimacy has the right to say no and can decide at any point that he or she does not want to continue no matter how far things have gone. If that happens, they are no longer giving consent and the sexual activity needs to end. Continuing to act sexually after one person has declared they are no longer giving consent can be considered sexual assault or rape and end in a criminal conviction.

Who Decides How Drunk Is Too Drunk To Consent?

The law does not explicitly state how sober a person needs to be in order to make an informed decision. It is up to a judge to decide if a complainant was too drunk to consent. A person could be intoxicated but yet a judge could determine that he or she still had the coherent capacity to consent, for example, by saying ‘yes’ to the sexual activity.

Sexual assault cases are very complicated, especially in cases where the accused may not have realised how heavily intoxicated their partner was or if he or she truly believed the other party gave consent.

Our legal system works on the presumption of innocence. Are we willing to lower our standard of proof?

In Australia, situations in which a person can and cannot give consent differ depending on the State and Territory you are in. If you are involved in a sexual assault case involving consent one of our criminal lawyers can help.

What Are The Penalties For Sexual Assault?

The severity of consequence for engaging in sexual assault is dependent on the State and Territory.

In New South Wales (NSW) there are a wide range of possible sexual assault offences. The maximum penalty this carries is 20 years imprisonment.

In Queensland (QLD), the maximum penalty for a individual convicted of sexual assault is 10 years imprisonment. However, it is possible in less serious cases that other penalties such as fines without imprisonment are imposed.

In the ACT, there are degrees of sexual assault that will be assessed before a penalty is given. Depending on the degree of assault (including emotional and physical damage to the victim) the maximum penalty can range from 12 years to 20 years imprisonment.

In the Northern Territory (NT), sexual assault offences are governed by the Criminal Code Act and the Sentencing Act. The most serious sexual offence in the NT is sexual intercourse or gross indecency without consent, this carries a maximum penalty of life imprisonment.

In South Australia, the penalty for sexual offences vary in the severity of the offence. The maximum penalty is between 7 years and life imprisonment for different circumstances.

In Western Australia, offences regarding sexual offences hold a maximum of 14 years imprisonment.

In Tasmania, the maximum penalty for rape is 21 years imprisonment. Lesser forms of sexual assault range from 18 months to 8 years. Aggravated sexual assault is now covered by the definition of ‘rape’.