Sex and the Single Malt Girl: How Voluntary Intoxication Affects Consent

Montana Law Review (Forthcoming)

San Diego Legal Studies Paper No. 16-234

29 Pages Posted: 4 Nov 2016 Last revised: 29 Nov 2016

See all articles by Kevin Cole

Kevin Cole

University of San Diego School of Law

Date Written: November 4, 2016

Abstract

This paper, a version of which was presented at the Browning Symposium at the University of Montana School of Law, addresses the important question of how the law should treat a voluntarily intoxicated person's assent to sexual contact. Many jurisdictions, as well as the Model Penal Code, do not consider voluntary intoxication as vitiating consent, notwithstanding that such intoxicated choices might sometimes be inauthentic. While acknowledging the positive autonomy interests in recognizing many instances of intoxicated consent, the paper argues that certain cases of extreme intoxication deserve different treatment. It also explains how these cases can be addressed, at least in part, without embracing objectionably vague liability standards. It canvasses and critiques the various approaches to this problem that have been suggested in the American Law Institute's draft revisions of the Model Penal Code sexual assault provisions. The paper concludes with some preliminary thoughts about the relationship between just criminal law and campus sexual assault regulation.

Keywords: intoxication, consent, sexual assault, campus disciplinary codes

Suggested Citation

Cole, Kevin L., Sex and the Single Malt Girl: How Voluntary Intoxication Affects Consent (November 4, 2016). Montana Law Review (Forthcoming); San Diego Legal Studies Paper No. 16-234. Available at SSRN: https://ssrn.com/abstract=2864546

Kevin L. Cole (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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