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

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