Affirmative Consent, by Way of the Intoxication 'Defense'

5 Pages Posted: 18 May 2017 Last revised: 30 Aug 2017

See all articles by Kevin Cole

Kevin Cole

University of San Diego School of Law

Date Written: May 18, 2017


This short essay makes a general point about criminal law by making a specific point about the American Law Institute’s debates regarding affirmative-consent requirements in sexual assault law. Last spring, the ALI fought a floor battle over the core difficulty of affirmative-consent provisions — their reliance on objective definitions of “consent.” Rejecting the recommendation of its reporters, the Institute adopted a subjective definition of “consent,” focusing on whether the partner was “willing” to engage in the sexual activity in question. Without any change in proposed statutory language, the reporters’ latest draft commentary signals an approach that would undermine the Institute’s preference for a subjective definition of consent. The mechanism is a reversal of the reporters’ previous position on the intoxication defense. That reversal would return to the reporters’ preferred, objective approach to “consent” in the large percentage of cases in which the accused is intoxicated.

Keywords: affirmative consent, sexual assault, intoxication, ali, american law institute

Suggested Citation

Cole, Kevin L., Affirmative Consent, by Way of the Intoxication 'Defense' (May 18, 2017). University of Illinois Law Review, 2017, Forthcoming, Available at SSRN: or

Kevin L. Cole (Contact Author)

University of San Diego School of Law ( email )

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San Diego, CA 92110-2492
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