Drunken "Consent"

Jeremy Stangroom asks an interesting question over here.  "Suppose somebody says this to you--
I want to want to have sex with you, but I never want sex unless I’m high or drunk. I can’t relax and I don’t enjoy it. But look, I’ll start drinking, and hopefully there will come a point where my inhibitions are sufficiently lowered and I’m relaxed enough so that we can go ahead. But realize I’m not consenting right now to have sex with you later, I’m simply telling you that I’m making the choice to drink in the hope that I will come to want sex later on. If that happens, I’ll let you know, but it might not. 
This person then starts drinking, ingests some ...  amount of alcohol (i.e., past the point at which under normal circumstances you would consider it wrong to have sex with them), and then tells you they are ready to have sex with you."  Is there anything wrong with going ahead?  A bunch of assumptions we're supposed to make come next--have a look over there.

Let's make this more manageable by putting it all in the third-person.  John wants to have sex with Mary.  Mary merely wants to want to have sex with John, and makes the speech above.  The odd thing about the speech is that at first, Mary more or less tells John that she does want to have sex with him, but she's simply not ready yet.  That seems to be the import of her telling him that she has to be high or drunk to want to have sex. In essence, she's saying to him "My reluctance at the moment has nothing to do with you. In principle, I do want to have sex with you.  But I want to be able to control whether we stop or go, at every point in time." OK, fine ...

But then Mary shifts gears, telling John he has to wait for consent that may or may not come later on.  "But realize I'm not consenting right now to have sex with you later."   This sounds like more than wanting to maintain moment to moment control.  She actually wants John to think there's been no consent yet, and consent may come later on, at the point when she's drunk -- or may not.

Well, no!  Imagine it's like this--
John wants to sell his motorcycle to Mary. Mary wants to want to buy, but she's nervous about it, so suggests they go to a bar, where she will have a few beers in the hope that she will start wanting to buy the motorcycle. She's adamant that consent for the sale hasn't been granted yet, but says consent may (or may not) be given in the bar.
John should certainly decline this plan. You need mutual consent for a major sale, and he won't be able to secure it.  Likewise, you need mutual consent before sex, and John won't be able to secure genuine consent from someone who's inebriated.

Now, there are times when we don't really need mutual consent, because the activities in question are too trivial.  Here's another John and Mary story--
John wants to go on the roller coaster with Mary. Mary only wants to want to go on the roller coaster with John, but doesn't want to. She suggests they go to the Green Beer Booth first.  She has a few beers, then says "let's do it!" 
Fine. He doesn't have her consent before getting on the roller coaster with her, but doesn't need it--the activity is too trivial.

I take it that in our society we see having sex with someone as more like buying a motorcycle from them and  less like going on a roller coaster together.  That's why the drunken willingness that's sufficient in the roller coaster scenario just won't do when the issue is whether to have sex.  Is that silly or irrational?  Hardly!  Sex involves bodily penetration, risk of pregnancy and sexually transmitted diseases, emotional risks, and so on.

Poor Mary and John! If she really can't consent to sex without being inebriated, I think she's going to have to remain celibate.  And he's going to need to find another partner.


Jeremy Stangroom said...


You've managed to pre-empt a big chunk of my intended follow-up post - only it would have involved a bungee jump rather than a roller coaster.

Alan Cooper said...

Although the initial statement is explicitly NOT consent given now to have sex when drunk, it IS consent given now to have drunken consent interpreted as informed consent. So if when drunk she asks for it, she need not be denied (unless he loses interest when he sees her in that sloppy state!)

A related question. What if he gets drunk too? If drunkenness removes the responsibility for consent why does it not also remove responsibility for assault?

Jean Kazez said...

Hi Jeremy--I blame you for the fact that I have all sorts of examples like this drifting around in my head--both the roller coaster type and the motorcycle type.

Alan, I don't think consent works that way. If I consent to have you interpret X as consent, that doesn't automatically make X qualify as consent. For example, suppose I consent to have my signature on a document construed as consent. Yet in fact, the document is written in Chinese, which I don't understand. My signature just does not constitute consent, because I didn't know what I was signing. I can't say--"I waive that requirement--for me a signature always indicates consent." That's not just not what consent is--it's not simply whatever some one or other wants to treat as consent.

I think if I'm involved in some serious sort of transaction with someone, the sort that requires mutual consent, I've got to secure real consent, not what someone's prepared to simply regard as consent. For example, I can't sell my motorcycle to someone who's prepared to sign a piece of paper they don't understand, just because they say "For me, that's consent."

About drunkenness--I was once on a jury where the defendant had committed manslaughter while drunk. The judge instructed us over and over again that you can't hide behind alcohol. You're not less culpable because you happen to have been drunk. A drunk rapist doesn't get to use inebriation as an excuse. That certainly makes good legal sense to me. Gotta run...tho there's more to say on all these issues.

Jeremy Stangroom said...

@Jean - Dentist. Procedure with some risk attached. Fear means no consent until alcohol or whatever... :)

Jean Kazez said...

Jeremy, There are two very different issues here--

(1) Does the patient consent to the procedure, in principle?

(2) Is the patient ready to begin the procedure?

I don't think the patient can give true consent to the procedure while drunk or on drugs, because they impair judgment and reduce inhibitions. No dentist is going to give you a form to sign, and wait for you to get drunk before signing it.

It's another matter if you have already consented, and need pharmacological assistance to get to the point of being ready to start. In fact, the dentist will be happy to oblige--giving you laughing gas, a tranquilizer, or whatever.

I should think that anyone who was really in this situation, and needed a tooth pulled, an operation, or whatever, could be made to understand that basic consent has to be given when you're "of sound mind", but after you consent, the procedure doesn't start until you say "green light". If you need alcohol to say "green light" that's very different from needing alcohol for basic consent.

I think the person who makes that speech about sex is actually just ambiguous. Do they need alcohol prior to basic consent or just to say "green light"? If for basic consent, I think the person who decides to have sex with them is not going to be able to go forward with full, first-class, mutual consent. If for "green light"--then get out the champagne. I see no problem with that.

Jeremy Stangroom said...


Sure, but I think it's possible to set up the dentist scenario so that the would-be patient says:

"Look, I want to want this procedure. I'm fully aware that it's needed. I understand the risks. But I'm terrified. I can't even think about getting in that chair until I'm more relaxed. I'm absolutely not consenting right now. Keep your hands off me. I'm happy to sign your waiver form, I certainly have no problem with the risks, etc. if I give you the go ahead, but until I actually say it's okay to begin, take it from me, it isn't."

They then have a few drinks.

Thing is, I know somebody exactly like this. They are dentist-phobic. And they do manage to get dental care. (They don't quite make that speech, but not far off it.)

I don't think that counts as "basic consent". I think it means that the person is signalling in advance that they are currently aware about what exactly it is they may or may not be consenting to in the future (and in this instance, they are indicating that they are willing to accept the risks that might come with any future consent).

Jean Kazez said...

It sounds to me like this person wants control over when the procedure begins--that seems to be the real issue. She wants the procedure to begin only after she has a sedative (or whatever) and says "begin". To achieve that goal, it seems to me she simply does not have to insist on having a sedative before she gives basic consent to the procedure. She can give basic consent and nevertheless retain control over when, and under what conditions, the procedure commences. There are very good reasons not to allow people to delay giving basic consent until they're on sedatives. That's because there are more complicated things to think about when deciding whether to have a procedure than when deciding to simply begin.

Let's say the dentist explains all of this. "There's consent for the procedure, and then there's authorizing me to begin. I'm just asking for consent for the procedure now. Don't worry, I won't begin until you authorize me to begin, and you can have a sedative before you authorize me to begin." If the patient is so anxious that she can't go along with this, I think the dentist really can't proceed. But then, if the dentist emphasizes he won't start until the patient gives him the green light (and has the sedative) why would the patient not be satisfied? It seems just irrational on her part to insist that the consent, as well as the authorization to begin, has to come after the sedative is offered.

Faust said...

I have grave doubts about whether the question that is being posed here is a moral question at all. In my view is the question is more or less a prudential one.

Jeremy’s scenario relies on an ambiguity inherent to chemically altered states of consciousness. When people are chemically altered, they are in a sense “different people” and it is always possible for them to declare later “I only did that because I was chemically altered, I would not have done that had I been sober.” Or as Jeremy explicitly stipulates for the case in question: “it’s counterfactually true that in the absence of the alcohol, they would not have consented…”

So what we have here are people who:

1. Want to engage in certain activities
2. Are unable to engage in those activities when they are in a “normal” state.
3. Are able to engage in those activities when they have crossed the line from “normal” judgment” into “impaired” judgment.

Now how do we know if someone who is in an impaired state “actually” wants to do the thing they did? I submit there is only one criterion: how they judge that decision once they return to “normal.” At the time of consent while impaired, the decision is frequently clear. It is a commonplace to say to drunk people “I know you very clearly WANT to do X (where X = have sex, drive home drunk, buy an exorbitantly expensive item), but trust me, you’ll regret it in the morning.”

So what we have here is a special case of someone saying: the only way I CAN want to do X (and in this case X is sex), is to get into a frame of mind so abnormal that it will be quite unclear to anyone as to whether or not I’ll have been happy with that decision after the altered state passes. Or as Jeremy puts it: “Third, you have no particular reason to think they will come to regret any sexual encounter that takes place. They might, but they might not.” [emphasis mine]. It’s the last part that is crucial as it crystallizes the entire ambiguity in question. The person here is essentially saying “I only have the desire to have sex when I’m in a state of impaired judgment, but you’ll have no way to know until after the fact whether or not I will “actually” be OK with the consent that I gave. “

Under such circumstances I think it would be very imprudent to have sex with such a person, but not really immoral. If someone says: “I will only engage in this transaction with you when I’m in a state that impairs my judgment, but you won’t know until after the fact whether or not I actually wanted to engage in the transaction,” then your response should be “that sounds like a dangerous bet.” But I don’t detect any “intrinsic” moral principles in play here.

Jean Kazez said...


I think the underlying issue here is whether having sex is the sort of risky business where we all thing a prerequisite is first-class mutual consent, the kind you can only give when not intoxicated.

Let's have a new story, where we increase the risk level. Now it's Mary who wants to have sex with John. The reason is because she wants to get pregnant. John says he is in principle amenable, but does not consent right now. He says he would like to get drunk, and hopes that once inebriated, he will get to the point of consenting.

In that scenario, I think it's pretty obvious that John's not going to be able to give "enough" consent to having sex with Mary if he only "consents" once inebriated.

If you think of sex-for-pleasure instead of sex-for-pregnancy as a serious matter too, with various attendant risks, then you're going to think in the original scenario there also has to be high-grade consent (without intoxicants distorting the decision process).

Is this just a prudential issue? If you think having sex is a serious business that puts the partners at risk in various ways, then it's morally important to secure consent before you proceed.

One more scenario. Going back to Mary being the one who wants to get drunk before consenting, suppose she knows John has AIDS, but he's promising to wear a condom, etc. etc. She thinks that sounds OK in principle, but says "I'm not consenting now, but let's get drunk, and hopefully then I will consent." Surely John would be not just unwise but morally wrong to take her up on this.

So--bottom line--if we think of having sex as serious, risky business, nothing less than first class consent is going to suffice. That doesn't mean two people have to get out a contract and get all legal. But if one is explicitly saying, at the outset "I do not consent to have sex with you" then that pretty much rules out having sex. They've already said "no". I don't think the person can change that by saying "let's get drunk and then hopefully I'll consent." That just wouldn't be good enough consent, supposing the activity in question is one that actually matters and has associated risks. And surely it is--what with possibilities of pregnancy, STDs, someone feeling violated, emotional side-effects, etc.

Faust said...


I think you’re absolutely right that this boils down to a question of risk. Concurrently, it boils down to the question “who is assuming the risk.” This can be further broken down into two further dimensions:

1.Who is incurring the risk, i.e. who is going to be harmed if things go badly (get diseases, get pregnant, experience emotional distress).
2.Who is liable for the risk?

My question is whether or not 2 can be made into a distinct moral question, and it’s not clear to me that in Jeremy’s scenario that it can in any interesting way. You say that in transactions which cross a certain level of risk, that we need first class consent. What makes the scenario interesting is that someone is saying:

“I won’t give you first class consent. What I will do is tell you that I may give you second class consent later, but I won’t assume any liability for any risks (“I might or might not come to regret it”). By the way I really HOPE that I’ll actually want to have consented (I “want to want to, but I don’t YET”). But no guarantees!”

Now seriously confronted with such a scenario, either in sex or in business, I don’t think the person who takes someone up on such a nutty offer is being immoral. I think they are being colossally stupid. I think this is actually pretty clear if you turn it into a business transaction:

“I’d like to buy this from you, but the only way I might consent is if I’m drunk. If I tell you I’d like to buy it when I’m drunk you should consider selling it to me, but I reserve the right to change my mind later.”

Perhaps Jeremy thinks there is something more sophisticated going on than this kind of nutty ask, but it seems quite clear to me that the whole thing can be resolved (contra your comment “That doesn't mean two people have to get out a contract and get all legal”) with what essentially amounts to legal contract.

John should NOT have sex with Mary unless she is willing to assume responsibility for her actions while drunk, given that the only way she can get what she “wants” is to get drunk. There is a risk that she won’t actually have wanted to, but she “wants to want to.” Unless she’s willing to take on the risk that she might not have wanted to, then John shouldn’t agree to incur all the risk.

Here is an absurd version of this scenario (possibly not related) that popped in my head while thinking about this:

Let’s say Mary and John meet at a party (for the first time) while rip roaring drunk. They have sex. However, both of them “blacked out,” and neither has any memory of meeting each other, or having sex. As it happens there were witnesses, and all witnesses report that the event looked totally consensual, if a bit sloppy. Can Mary decide she was taken advantage of? Presumably the law has something to say about this. But I’m not sure there is anything morally interesting here.

Faust said...

On further reflection, I wonder if this can be turned into a "moral luck" scenario.

Jean Kazez said...

Well let's see...

I think in lots of cases this "try to drink yourself from 'no' to 'yes'" strategy is just downright irrational--particularly when there are real risks involved in the activity. And then there's a moral rule that says, roughly, that it's wrong to exploit irrational people--i.e. wrong to benefit from their irrationality. So it's a moral issue whether you go along with things like this, not just a prudential issue.

I think that's pretty intuitive in a lot of the cases -- like the one where Mary wants to have sex with John in order to become pregnant, and he proposes to drink himself from 'no' to 'yes'. It would be expoitative of her to go along with this in the hope of getting what she wants.

Another angle--

I'm thinking about how you'd want college students to be counselled at first year orientation, where there's a lot of emphasis on preventing date rape. I would be very reluctant to tell peope that someone can say "no" while sober, but still be a legitimate partner an hour later, when drunk. The details about how they deliberately tried to drink their way to "yes" just don't seem like enough to outweigh the initial "no".

Wayne said...

This doesn't seem too problematic to me here. In the original scenario, you can't get real consent... In the dentist scenario, you give consent prior to the procedure.

So let's make it murkier. I don't ask my wife for consent whenever we have sex. But there is an implied consent that needs to be revoked for it to be rape in the case of long term relationships. So she revokes it. She's got a headache... But if she takes her reasoning impairing migraine medication she'll consider intercourse later, if she's feeling better. Later after she has taken her drug she consents. Her headache is gone but she is irrational. Do I have my implied consent back?

Charles Sullivan said...

I want to want to? Who thinks like that in the real world?

Torquil Macneil said...

Is the motorcycle counter-example so clear cut? Here's another version which may muddy it up a bit:

Mary has inherited a motorcycle from her recently deceased father. It was his pride and joy and her very fond memories of him are intimately tied up with it. However, she cannot ride the motorcycle, has not desire to learn and is in desperate need of money. She thinks her father would understand. Mary approaches John who is wild about motorcycles and he agrees that he would like to buy it at a certain price. Mary says she would like him to have it and her to have the money but she just cannot stand to sign away the deeds unless she is very drunk, because the pain of loss would be too great while sober. And she will not commit in principle to give the bike to John right or even later because she might want to change her mind, although she is sure that the best course of action would be the sale and she really needs the dough. So they sit in the bar until Mary is sozzled and finally, sobbing, signs away the bike to John.

I don't know what the law would be in that situation, but I can't think that John is necessarily wrong to take the bike off her (so long as he coughs up the cash).

Simon Rippon said...

Sometimes I've fitted your example almost perfectly - but with respect to dancing (and singing at karaoke) rather than sex. Of course, dancing with me without my consent isn't a trivial thing like going on a roller coaster. It's a very serious matter because dancing with me without my consent constitutes assault. I am rather surprised to discover that I am, in the light of many pleasurable nights of dancing that I loo back on with fondness, a multiple assault victim!

I think there is in fact consent here, based on the higher order desire. Isn't the sober Mary in fact implicitly consenting to have sex conditionally on her wanting to? The only reason she is hesitant to consent *now* is that she doesn't know for sure that she'll later want to. (Similarly for the motorbike sale - even if legally the contract wouldn't be enforceable, John wouldn't be doing anything morally wrong in carrying out the trade, but merely something imprudent.)

Faust said...

Well this has been fun, but I think we've substantially deviated from the real world in the name of interesting dilemmas.

It is a basic fact about our world that we have these things called bars. At these places people congregate and drink heavily, frequently to the point of impairing their judgement. Further, it is considered normal in these environments to "hook up" with other people. People drink at these places to "loosen up," "get in the mood" and so on.

So it is a basic feature of the world that people go to these places to lower their inhibitions, relax, and otherwise alter their default mood. They do this knowing full well that that they are going to alter their mood. For many it's the reason they drink in the first place. They want to be in the state that drinking puts them in. Now there is risk to getting drunk, because there is a continuum of "mood alteration." At one end we have a lowering of social anxiety and mild mood alteration, and at the other end we have blackouts and complete loss of consciousness.

So what is of interest here is the relationship between the intensity of mood alteration, and "loss of first order consent." How do we track when mood alteration has reached the point where it is interfering with "proper" consent.

Jean Kazez said...

Indeed, there are these places called bars. But people don't tend to sit with someone they might later have sex with, and say "I am not consenting now to have sex with you later." That's what's creating all the trouble here!

Since Mary does say that, it's hard for me to accept what Simon says--that Mary is "in fact implicitly consenting to have sex conditionally on her wanting to." If that were her attitude, I think she'd just skip the initial speech, start drinking, and signal "wanting to" later on.

But aside from that--I don't go for the idea that you can instruct someone to listen to your drunk self, and make them blameless if they do so. Suppose Mary tells John to listen to her drunk self, and have sex with her without a condom, if that's what her drunk self agrees to. He ought to see that she's being irrational and not take advantage of it. It just doesn't seem to be true that you can release someone else from responsibility by saying "I hereby agree to whatever my drunk self prefers in the next two hours."

OK--must go enjoy Labor Day.

Simon Rippon said...

Happy May Day!
Well, I admit that Mary's speech marks her out as a bit of a nutcase, and I've certainly never heard such a speech. There's far too much thinking aloud going on! But her speech surely isn't now *denying* conditional consent for sex later (as you seem to suggest in your reply Jean); she is more-or-less explicitly stating that she consents *if* she wants sex later.
I think you must be are assuming that her wants when drunk would be irrational when you say the other party would be "taking advantage"... but there are no grounds for that assumption. She said she "can't relax" while sober, not that she recognizes while sober that it would be irrational to relax and want sex. She wants to want sex!
If you can't instruct someone to listen to your drunk self, how come you can instruct someone to listen to something you have *no* control over, like the other parent's instructions: "I'm not telling you you *can* have a new bike, but see what your mum says".

Jean Kazez said...

Simon, Right, she's not denying consent for sex later. Don't think I said she was! "Doesn't consent" doesn't mean "denies consent".

You can tell this story so that both people have virtually consented, while sober, to "sex if we both want it" later on. You just have to fill in the details so that, prior to drinking, they have mutual knowledge that there are no issues about contraception, STDs, etc. etc. In that case, it's pretty trivial to say that Mary can authorize John to heed the preferences of her drunk self. Sure. But that's because there's already sober informed consent, and John knows of no problems that should give him pause.

All I am saying is that the consent of Mary's drunk self is not sufficient, all by itself, to give John the green light, even if Mary deliberately drinks in the hope of consenting. You need all the other conditions to be met beforehand.

When you tell a kid to ask Dad, I take it the stages are similar--first you think through whether Dad tends to be rational in that territory. If you think "yes" then you relinquish control, saying "ask Dad". If you skip the first stage, they you certain could be making a mistake.

(But I'm intrigued by the topic of deferring to the other parent. Hmm, that might have to go someplace in my parenthood book-to-be!)

Simon Rippon said...

Ah, well at this point I think you need to separate out "taking advantage" and "failing to get consent". I think it's easy for philosophers to set the bar for "genuine consent" unrealistically high. You're basically saying that John never has Mary's genuine consent unless she consents at some time t at which she is both fully rational and fully informed. But these conditions aren't necessary for consent in any ordinary sense. If you fail to fully inform yourself through your own fault, or if you are irrational through your own fault, and you agree under those conditions to something that benefits me and I know this, then I may be taking advantage of you, but I am not - in any ordinary sense of the word - failing to get your consent.

Jean Kazez said...

But I never said anything about people being "fully rational" or "fully informed." I simply said John and Mary had to have "mutual knowledge" on certain specific matters like contraception and STDs. I think this is just common sense, and not setting the bar too high.

Suppose John is having a herpes flare up, and hasn't told Mary. She says "I want to want to have sex with you--let's start drinking." No, even though she wants to want, her later drunken consent won't be sufficient to acquit him of wrong-doing. She doesn't know what she needs to know at the outset.

Or make it the other way around. John's the one trying to get drunk enough to want to have sex with Mary--for some reason he's reluctant at first. She hasn't informed him that she's not on the pill and she's pro-life. John's drunken consent, later on, isn't going to be enough to entitle Mary to have sex with him.

I don't think I'm being too demanding here. In fact, if we were telling college students how to negotiate sex, this is exactly what we'd tell them--you have to let people have specific information about you before having sex and the time to get that information on the table is when nobody's too drunk to think clearly about it.

Simon Rippon said...

I agree about these last two examples, Jean, but they're fundamentally different from the case that you set out with in the post, because in each of them the party attempting to obtain consent is (whether intentionally or inadvertently) concealing from the other an important piece of relevant information. Mary's drunken agreement is insufficient in your last case precisely because her prior sober implicit "consent" did not count, not because of anything intrinsic about the drunken state itself.
Similarly, if the kid fails to reveal that he's just been given a perfectly good new bike by his grandma when he asks me for one, then I was misled, and my i'm-not-promising-you-but-go-ask-your-mum response doesn't count as granting conditional consent either. So even if mum agrees because she's always happy to spoil the kid, I can still complain that I was hoodwinked and never really consented to the purchase. It's the earlier implicit conditional consent, or lack of it, that's doing all the work in these examples.

Simon Rippon said...

By the way, I also like Torquil Macneil's adaptation of the motorbike example, in which Mary is clearly drinking to be *better* at acting on her rational preferences. This is, to my mind, a more natural reading of the original case than the reading on which Mary is drinking in order to get herself to act irrationally. And that matters when we're wondering if anyone is being taken advantage of.

Jean Kazez said...


What are we really arguing about here ... I'm starting to wonder. I think we all agree that drunken consent is problematic, and we all agree that it at least makes some difference if someone deliberately gets themselves to a point of drunken consent. So deliberate drunken consent (DDS) is better than drunken consent.

Then again, a bunch of other conditions have to be in place for DDS to give someone else license to do whatever the person is consenting to. What the conditions are depends on what the activity is--sex, a sale, a roller coaster ride, etc. Should we assume the original sex scenario was one where all the extra conditions were met? I don't know--maybe that was what Jeremy wanted us to do.

I will throw out another tentative suggestion, which is that we may go along with DDS only when we think another person has good reasons for DDS-ing. In the original bar scenario, Mary does have good reason for DDS-ing, and John knows the reason. Maybe that's the case in Torquil's motorcycle scenario as well.

But it's easy to think of cases where someone DDS's but for bad reasons, and the other person doesn't get any license to proceed. Creepy scenario: a situation like in the novel The Handmaid's Tale. Mary doesn't have any choice but to have sex with John. So she drinks herself into wanting to. This might be slightly better than mere drunken consent, but it doesn't license him to have sex with her.

Bottom line--I will cheerfully concede that deliberate drunken consent is better than drunken consent, and sometimes licenses having sex, provided a bunch of other conditions are met. But it seems like a bad idea to put too much emphasis on it. In the real world, if you're deciding whether it's OK to have sex with someone, you've got a whole lot more to ponder than whether they've given you DDS.

Simon Rippon said...

I think we're nearly in agreement at this point. The problem I see with The Handmaid's Tale type example is that an element of voluntariness was missing in the prior consent to get drunk. Maybe you'll agree. My point is that the so-called "drunken consent" is not actually doing any work in any of these examples. Assuming a sufficient state of inebriation, it no more counts as consent in itself than a coin falling heads would. But the prior consent can still be conditioned on its happening. It's the validity of the prior consent, implicit or explicit, to put the drunken consent plan into action that matters in these cases.

Tying it back to the real world,as Faust helpfully did, is it OK for adults to hook up with others who have loosened inhibitions after a night out drinking, as they so often do? It might be inadvisable prudentially, but is it immoral? That would depend, given what I've just said, just on whether the parties properly consented to getting themselves into that position. If there's a prior understanding among our sober selves that we want to allow our drunk selves to act on these loosened inhibitions, and thus implicit consent, I don't see a moral problem with such behavior - even when no explicit sober discussion was had. But of course, it is often going to be to difficult, or even impossible, to determine whether that implicit sober consent for sex really existed. And that's why having sex with drunk people is morally risky.

Torquil Macneil said...

" But it seems like a bad idea to put too much emphasis on it. In the real world, if you're deciding whether it's OK to have sex with someone, you've got a whole lot more to ponder than whether they've given you DDS."

Well yes, that must be right. In real world situations I would always say that you should assume no consent is given (for acts with serious consequences - so feel free to spend the night but not to have sex) if it has been witheld until someone is drunk. That seems like the right rule of thumb.It is what I will teach my son and my daughter. But this thought experiment was very much not-real-world. Please don't think that I am advocating some real world idea of Drunken Consent in either of its varieties.

Alan Cooper said...

Hi Jean, Thanks for your reply to my comment. Sorry if this is stale but I forgot to look for your reply - and I do still remain unconvinced (both on the original question and with regard to your chinese language example).

Surely I am allowed to give you permission to do whatever you want with me if I want to take that risk. (I won't of course, but I should be "allowed" to.) So I don't understand why my consent to a document I don't understand is not informed consent IF I am aware of the fact that I don't understand it (as in your chinese language example). What I have then been properly informed of in that case is that my consent is open-ended, and I don't see how you can deny me the right to knowingly give such consent. (In fact I might argue that most medical consent forms are essentially of this type since the patient's understanding of the implications is often not much greater than it would be if they were explained in a foreign language.)

The sex situation is much more limited. I can be aware of the nature of the act being permitted and actually want it to happen (perhaps desperately wanting a child in the time before AI was an option but unable to relax sufficiently to render the process painless - or maybe just hoping for having "done it" to help me overcome an inhibition which conflicts with my more conscious desires). This is not blanket consent to anything, nor is it necessarily consent in advance, because I may want to retain the option of refusal if my inhibitions do remain. But it is subject to my feeling genuinely and consciously free of reluctance at the time of the event. This is not consent in advance to the act because it is conditional on an unknown future state of affairs, but the wording of Jeremy's proposed statement by Mary does in my opinion unambiguously imply conditional consent in advance, and once the condition is met John has at least as much obligation to proceed as to refrain.