Sex with someone too drunk or drugged to be able to give an informed consent

[Martinus]

Simple question.

For the sake of this exercise assume the follow:
- the "victim" intoxicated herself or himself (no rape drug etc.),
- the "perpetrator" knows or should reasonably know a "victim" is not in a state where one is in full control of mental faculties.

It seems in Canada (BB, viper), this is alright and not considered rape, which I find surprising.

[ulmont]

For the sake of this exercise assume the follow:
- the "victim" intoxicated herself or himself (no rape drug etc.),
- the "perpetrator" knows or should reasonably know a "victim" is not in a state where one is in full control of mental faculties.

If you consider the forgoing to be rape, then the logical implication is that any sex between 2 drunk people is mutual rape.  Accordingly, you need a more nuanced definition.

Yes, having sex with someone who is passed out or almost passed out would be rape.

Sex with someone who has been drinking or using drugs is, however, not always going to be rape.

[Josephus]

It seems in Canada (BB, viper), this is alright and not considered rape, which I find surprising.

I would hope not, as that's pretty much all the sex I get these days. 

[DontSayBanana]

Nice Strawman, Mart.

If she's slurring her words, showing a lack of coordination... sure.  You know that person's got a problem.

If she's not slurring her words, not showing a lack of coordination, you've got to prove that the "perpetrator" actually witnessed enough drinking that he should reasonably conclude she's drunk.

If she's not slurring her words, not showing a lack of coordination, and he's only seen her down a drink or two, you can't say a reasonable man would conclude she's drunk.

[Josephus]

What about if she says, "Fuck, I'm drunk. Hey wanna fuck?" And what if you, are also drunk?

[Barrister]

Simple question.

For the sake of this exercise assume the follow:
- the "victim" intoxicated herself or himself (no rape drug etc.),
- the "perpetrator" knows or should reasonably know a "victim" is not in a state where one is in full control of mental faculties.

It seems in Canada (BB, viper), this is alright and not considered rape, which I find surprising.

The law on consent in Canada is considerably more nuanced then the position you are attributing to me.

[Josephus]

By the way, I was only kidding. I would never do that. In reality, I'm quite the gentleman

[Jaron]

I have to get myself drunk to convince myself I'm worth wanking for.

[DGuller]

Interesting question.  I was first going to say that you take responsibility for your lack of judgment down the road when you choose to drink, like in DUI or drunken assault cases, for example. 

However, I then thought of the cases where bad decisions involve cooperation from sober people.  If you're at a bar and drunk, the sober bartender is supposed to cut you off at some point.  If you're at a casino and clearly drunk out of your mind, the casino employees are supposed to kick you out rather than continuing to let you gamble. 

Now I'm not sure about the question in the OP.

[Barrister]

Very brief lesson:

First of all there is a specific section in the Criminal Code dealing with consent, s. 273.1:

273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

So the main issue discussed here is 273.1(2)(b) - where the complainant is incapable of consenting.  A notion of 'informed consent' is incorrect in Canadian law, and would have the effect of criminalizing any instance of poor judgment while intoxicated.

Whether someone is capable of consenting or not is a matter of fact for the trier of fact to determine.  There is no particular legal test beyond that, and expert evidence is not required.  See R v A.A. (2001) 155 CCC (3d) 279 (Ont. C.A.).

[Barrister]

Interesting question.  I was first going to say that you take responsibility for your lack of judgment down the road when you choose to drink, like in DUI or drunken assault cases, for example. 

However, I then thought of the cases where bad decisions involve cooperation from sober people.  If you're at a bar and drunk, the sober bartender is supposed to cut you off at some point.  If you're at a casino and clearly drunk out of your mind, the casino employees are supposed to kick you out rather than continuing to let you gamble. 

Now I'm not sure about the question in the OP.

You're confusing different legal areas.

Laws against overserving exist, but they have little or nothing to do with consent wrt sexual assault.

[DGuller]

You're confusing different legal areas.

Laws against overserving exist, but they have little or nothing to do with consent wrt sexual assault.

I don't care about legal areas, to be honest.  I'm trying to generalize in a way that makes sense to me, instead of trying to arrive at an answer that a lawyer would give. 

To me, the uniting concept is how much the drunk person should be allowed to suffer due to his inability to protect his interests due to impaired judgment.  Drinking too much, gambling too much, driving while drunk, having sex with the wrong person, all those actions may damage the interestes of the person.  All those actions may not have been undertaken had the person's judgment been less impaired.

[The Brain]

Equivalent of rape? Hardly.

[Razgovory]

I guess Marty is trying to judge whether or not he should press charges.

[dps]

I guess Marty is trying to judge whether or not he should press charges.

Nah, he's just waiting for somebody to bring up a gay angle so he can get all shrill about it.