The Trouble with Drink: Intoxication, (In)Capacity and the Evaporation of Consent to Sex

17 Pages Posted: 12 May 2011

See all articles by Sharon Cowan

Sharon Cowan

University of Edinburgh - School of Law

Date Written: 2008

Abstract

Feminists have analysed the problematic way in which rape law has evolved in the shadow of the mind/body dualism. This paper will extend this analysis to the problems arising when consent to sex is “intoxicated consent”. One central question is the whether consent is a state of mind or a set of actions or behaviours, performed in certain way, to signify consent. Whether one believes consent to be a state of mind or an action, adding intoxication to the mix renders the problem yet more intractable for criminal law. If consent is a state of mind then being in an intoxicated state can make it extremely difficult to come to a settled state of mind about consent since intoxicants clearly affect the cognitive capacities and it is often also of course, difficult for others to ascertain one’s state of mind. However if consent is an action, alcohol/drugs again can impair the physical and verbal abilities to the extent that action is either impossible or, again, difficult to read. Either way intoxication can render consent obscure. This paper offers a feminist critique of the criminal law’s treatment of the parameters of consent when the person giving consent is intoxicated.

Keywords: Rape, Consent, Capacity, Intoxication, Feminism

Suggested Citation

Cowan, Sharon, The Trouble with Drink: Intoxication, (In)Capacity and the Evaporation of Consent to Sex (2008). Akron Law Review, Vol. 41, No. 4, p. 899, 2008; University of Edinburgh School of Law Working Paper No. 2011/14. Available at SSRN: https://ssrn.com/abstract=1837571

Sharon Cowan (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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