Intoxicated consent to sexual relations

Law and Philosophy

Volumn 20, Issue 4, 2001, Pages 373-401

  Wertheimer, Alan ^a  

^a UNIVERSITY OF VERMONT   (United States)

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EID: 0035598545     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1010607202618     Document Type: Article

References (43)

1. I set aside the question as to whether all sexual offenses should be referred to as "rape" and whether some are more serious than others.
2. According to Joan MacGregor, the fact that a woman "was drunk or high on drugs should naturally lead to the conclusion that she was not consenting, as she was incapable of voluntary consent." Joan McGregor, "Force, Consent, and the Reasonable Woman," in Jules Coleman and Allen Buchanan (eds.) In Harm's Way (Cambridge: Cambridge University Press, 1994), pp. 244-245. Laurence Thomas says "it is axiomatic that consent is rendered void if obtained from a person while [s]he was in . . . an utterly inebriated state." "Sexual Desire, Moral Choice, and Human Ends," Journal of Social Philosophy (forthcoming).
3. According to Joan MacGregor, the fact that a woman "was drunk or high on drugs should naturally lead to the conclusion that she was not consenting, as she was incapable of voluntary consent." Joan McGregor, "Force, Consent, and the Reasonable Woman," in Jules Coleman and Allen Buchanan (eds.) In Harm's Way (Cambridge: Cambridge University Press, 1994), pp. 244-245. Laurence Thomas says "it is axiomatic that consent is rendered void if obtained from a person while [s]he was in . . . an utterly inebriated state." "Sexual Desire, Moral Choice, and Human Ends," Journal of Social Philosophy (forthcoming).
4. I say "a" value rather than "the" value in order not to beg the question against consequentialist arguments for the importance of consent.
5. This account is based on an article in the Orange County Register, January 3, 1997, and is based largely on Adam Lack's account of the facts. The article originally appeared (date unknown) in the Providence Journal-Bulletin. For the purposes of this article, I shall assume that this account is correct. Even if it is not correct, we would still have to decide what to say about a case in which something like these facts occurs.
6. This account is based on an article in the Orange County Register, January 3, 1997, and is based largely on Adam Lack's account of the facts. The article originally appeared (date unknown) in the Providence Journal-Bulletin. For the purposes of this article, I shall assume that this account is correct. Even if it is not correct, we would still have to decide what to say about a case in which something like these facts occurs.
7. Adam claimed that he was not guilty: "How was I to know [that] someone who seemed so capable of making such a decision . . . how was I to know that later on they wouldn't have remembered and therefore assumed that this is not what they would have wanted?" Sara's peer counselor remarked, "It is his responsibility - his business - to figure out whether she was in a position to give consent . . . The implications of saying that he didn't know she couldn't give consent and thus he didn't commit rape are frightening." Nili Moghaddam, "Consent, Conflict, and Conscience," The College Independent. http://www.netspace.org/indy/issues/09-19-96/news1.html. A different view was expressed in letter to the Brown University Herald, April 2, 1997 - "Adam Lack did no wrong. He simply slept with a girl who he says he didn't know was intoxicated. I would have done the same thing given the situation. How many men wouldn't . . .?"
8. I thank Arthur Kuflik for helping me to see the need for this distinction.
9. I shall assume that the substance has a direct biochemical effect on B's psychology. B might consent to sexual relations after consuming her favorite dish that A prepared for her. I do not count this as a case of substance-affected consent.
10. I thank David Christensen for help on this point.
11. In some cases, substances may be more akin to deception. Suppose that B likes to have sexual relations when she is aroused by a man. She regards that as a good reason for having sex. If A puts an aphrodisiac in her drink, B may have sex with A for reasons that she accepts, but she is deceived as to why she is aroused. Deception does not distort the reasoning powers or affect one's reasons for action. I thank Arthur Applbaum for help on this point.
12. Corpus Juris Secundum maintains that there is no offense ". . . where the female voluntarily drank the substance alleged to have excited or stupefied her." 75 C.J.S. Rape, Sec 11. (St. Paul: West Publishing Company, 1936) p. 480. The (in)famous Antioch College Code also treats A's role in B's intoxication as relevant. It is a violation of the code if "the person submitting is under the influence of alcohol or other substances supplied to her/him by the person initiating." As reprinted in Robert B. Baker, Kathleen J. Wininger, and Frederick A. Elliston (eds.) Philosophy and Sex (Amherst, N.Y.: Prometheus Books, 1998), p. 643. The relevant Vermont statute states that one commits a sexual assault if one engages in a sexual act with another person and has "impaired substantially the ability of the other person to appraise or control conduct by administering or employing drugs or intoxicants without the knowledge or against the will of the other person . . ." Title 13, V.S.A. Section 3252.
13. Corpus Juris Secundum maintains that there is no offense ". . . where the female voluntarily drank the substance alleged to have excited or stupefied her." 75 C.J.S. Rape, Sec 11. (St. Paul: West Publishing Company, 1936) p. 480. The (in)famous Antioch College Code also treats A's role in B's intoxication as relevant. It is a violation of the code if "the person submitting is under the influence of alcohol or other substances supplied to her/him by the person initiating." As reprinted in Robert B. Baker, Kathleen J. Wininger, and Frederick A. Elliston (eds.) Philosophy and Sex (Amherst, N.Y.: Prometheus Books, 1998), p. 643. The relevant Vermont statute states that one commits a sexual assault if one engages in a sexual act with another person and has "impaired substantially the ability of the other person to appraise or control conduct by administering or employing drugs or intoxicants without the knowledge or against the will of the other person . . ." Title 13, V.S.A. Section 3252.
14. For an extended defense of this view, see R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge: Harvard University Press, 1994).
15. T.M. Scanlon, What We Owe to Each Other (Cambridge: Harvard University Press, 1998), p. 277.
16. Heidi M. Hurd, "The Moral Magic of Consent" Legal Theory 2 (1996), at 141.
17. See H.L.A. Hart, Punishment and Responsibility (New York: Oxford University Press, 1968), p. 19.
18. See John Martin Fischer and Mark Ravizza, Responsibility and Control (Cambridge: Cambridge University Press, 1998), p. 89. Specifying the "appropriate prior time" can be controversial. We might say that an alcoholic is not responsible for her intoxicated behavior because she could not choose not to become intoxicated at the appropriate prior time. Or we might say that while she did not have the capacity to not become intoxicated at the time that she became intoxicated, she had the capacity not to become an alcoholic in the first place.
19. Ibid.
20. "The snapshot properties of the agent and the mechanism that leads to certain behavior do not suffice to specify an agent's moral responsibility: what is also relevant is the history of the relevant behavior" (Fischer and Ravizza, Ibid., p. 195). To invoke Robert Nozick's terminology, Fischer and Ravizza adopt an "historical" rather than a "current time slice" view of responsibility. See Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 153. As Scanlon puts it, "once an adult has had certain characteristics for some time and shows no tendency to resist or reject them, it is appropriate to attribute those faults to him and to hold him responsible for actions reflecting them." Supra, n. 12 at 284.
21. "The snapshot properties of the agent and the mechanism that leads to certain behavior do not suffice to specify an agent's moral responsibility: what is also relevant is the history of the relevant behavior" (Fischer and Ravizza, Ibid., p. 195). To invoke Robert Nozick's terminology, Fischer and Ravizza adopt an "historical" rather than a "current time slice" view of responsibility. See Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 153. As Scanlon puts it, "once an adult has had certain characteristics for some time and shows no tendency to resist or reject them, it is appropriate to attribute those faults to him and to hold him responsible for actions reflecting them." Supra, n. 12 at 284.
22. Still, we might think that B should take preemptive action against her own violent behavior if she discovers that she had been injected. If B knows that she is subject to epileptic seizures unless she takes medication, it is wrong for her to drive without taking the medication, even though she bears no responsibility for being epileptic.
23. 2 if she is dangerous).
24. I thank George Sher for help on this point.
25. Supra, n. 13, at 141.
26. Susan Estrich, "Palm Beach Stories", Law and Philosophy 11, 1992, p. 10.
27. "Liberty and Drugs" in Pablo de Grieff (ed.), Drugs and the Limits of Liberalism (Ithaca: Cornell University Press, 1999), p. 103.
28. "To overcome the will, so far as to render it incapable of contracting a civil obligation, is a mere trifle compared with reducing it to that degree of slavery and submission which will exempt from punishment." McCoy v. State 49 S.E. 768, 769 (1887).
29. I thank George Sher for help on this point.
30. As T.M. Scanlon puts it, it is a mistake to assume "that taking individuals to be responsible for their conduct in the sense of being open to moral criticism for it requires one also to say that they are responsible for its results in the substantive sense . . ." Supra, n. 12, p. 293.
31. See Jeffrey C. Hallam, "Rolling the Dice: Should Intoxicated Gamblers Recover Their Losses?" Northwestern University Law Review 85 (1990), at 244.
32. Even if such conditions are not benignly motivated by concern for the woman's autonomy, as seems likely, we must still explain why they should be resisted.
33. Joseph D. Calamari and Joseph M. Perillo, Contracts, 3rd edn. (St. Louis: West, 1987), p. 329.
34. Ibid.
35. Stephen Morse, "Crazy Reasons," Journal of Contemporary Legal Issues 101 (1999), at 189.
36. Williston writes that if an "intoxicated person is able to appear to give intelligent assent, he should not be allowed to set up his own misconduct to defeat one who has been deceived in dealing with him." Samuel Williston, A Treatise on the Law of Contracts, 3rd edn. (1950), p. 101.
37. Williston, Ibid. at 106. Emphases added The Supreme Court has held that evidence of competency should be "entirely clear" if it is to sustain a transaction when a drunkard has been "overreached" by a person who is "competent and aggressive." Kendall v. Ewert, 259 U.S. 139, 147 (1922).
38. I thank Albert Dzur for help on this point.
39. Supra, n. 27, at 256.
40. It may be argued that I have stacked the deck by making this a decision that people will make with respect to their own (potential) gambling activity, as opposed to the effects of that gambling activity on others. B may favor a rule that treats gambling losses as nonrecoverable. B's spouse may think differently. I am not here trying to model the choice of the socially optimal rule. I am trying to model what rule would be chosen if we were primarily concerned to respect the gambler's autonomy.
41. "Saving Gamblers from Themselves," New York Times, August 13, 2000, Section 14NJ; page 6. If gamblers have different preferences, then perhaps there should be gambling analogues to the choice between "dry" and "non-dry" residence halls. Gamblers who want to protect themselves against gambling while intoxicated could choose to go to a dry casino.
42. Women's choices do tell us something. I do not want to overinterpret the "revealed preferences" of women, but people do vote with their feet. Given the choice between walking at night alone and staying home, many women choose to stay home because they fear a sexual attack. Given the choice between staying home and attending a fraternity party where they may end up having (intoxicated) consensual (or nonconsensual) sexual relations, many women (often the same women) go to the fraternity parties nonetheless. This may suggest that they do not regard the prospect of having sexual relations while intoxicated with a strong ex ante sense of dread, although that may also reflect inadequate information and a misperception of the risks.
43. A "moral hazard" is created when one is more likely to engage in an undesirable behavior because one is insured or protected from its consequences.