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Sexual assault – can you give consent when you are drunk or high?


Sexual assault – can you give consent when you are drunk or high?

According to the Australian Bureau of Statistics sexual assault against females is on the rise. From 2014 to 2015 the amount of victims of sexual assaults increased by 7% (503 victims) to 7,464 from the previous year and the number of female victims related to sexual assault rose 8%. Of all the reported sexual assaults reported females comprised 85% of all victims and those aged 0-19 made up more than half of these victims (59% or 3,730 victims).

According to the Centres Against Sexual Assault fact sheet, 17% of women and 4% of men experienced sexual assault since the age of 15 (Australian Bureau of Statistics – Personal Safety Survey, 2012).

With Australia at more than double the global average, Australia has one of the highest rates of reported sexual assault in the world. Approximately 92 out of 100,000 people have reported being a victim of sexual assault, according to the United Nations.

However, these numbers may be under-inflated as many sexual assaults often go unreported as critics highlight because of low conviction rates. For example, according to the Queensland Crime and Misconduct Commission (2003), only about 17% of reported sexual offences resulted in a conviction.

Family, Domestic and Sexual Violence including sexual assault not only cost the victim in terms of emotional and psychological distress; it also has deep financial costs for the individual victim, as well as the country as a whole. The Australian Bureau of Statistics report that “responding to family, domestic and sexual violence through the health, welfare and civil or criminal justice system” cost the Australian economy $13.6 billion in 2013.

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.

According to the Australian Bureau of Statistics, 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.

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. 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.

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 he or she wants to participate in sexual activity with someone or not. Therefore someone who is drunk or high possibly cannot legally give informed consent. Anyone who is sexually involved with a person who is under the influence of drugs or alcohol is possibly committing sexual assault and possibly rape.

Even if someone seems eager to engage in sexual behavior they could be considered too intoxicated to give consent.

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

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

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 capacity to consent.

Sexual assault cases are very complicated, especially in cases where the accused may not have realized how 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. If you are involved in a sexual assault case involving consent one of our criminal lawyers can help.