Drunken Double Standard?

Readers of my Illustrated Guide to Law have frequently asked about a seeming double standard in criminal law when it comes to drunkenness. On the one hand, a person who is too drunk to think will be liable for crimes he commits; but on the other hand, a person who is too drunk won’t be able to consent to sex, even if she said yes. If you’re drunk, your actions are voluntary… unless you were having sex, in which case it was involuntary. It sounds like the rules change once sex enters the picture, and only then does alcohol absolve one of responsibility.

The rules really don’t change, however. There’s just two different rules, for answering two very different questions.

So for my non-lawyer readers (you lawyers already know this 1L stuff, go read another post or check out the awesomeness over at Fault Lines), here’s what’s going on:

With liability, the law is trying to decide whether you should be punished for something you did. But in the rape scenario, the law is trying to decide whether you are a victim. Two entirely different things.

With liability, the question is “did you do a bad act, and should you be blamed for it.” Let’s just presume you did a bad act, but you were blotto when you did it. Let’s say you were too drunk to know what you were doing. But you’re the one who got yourself drunk. Well, it’s your fault that you got so drunk you hurt someone, so it’s your fault he got hurt. You may have not had the intent to commit the crime at the time, but you voluntarily had that eighth shot of tequila. The law’s not going to let you get away with hurting someone just because you were hammered at the time.

(Some states do take intoxication into account when the crime required you to intend a specific outcome. So you could be liable for hitting someone with a bottle, but not for hitting someone with the intent to disfigure them. But not all states do this. Yours probably doesn’t.)

So you’re blameworthy if you do something bad while drunk. But why would you be blameworthy if something bad happens to you while you’re drunk? That’s where the rape scenario is different.

When thinking about the law of rape, it really helps to take the sex out of it. Instead of thinking of a sex act, think of it like any other assault. An unwanted offense to another person’s body. Rape is, in essence, a particular form of assault. And consent becomes an issue.

Two boxers are in the ring. Playing by the rules, one lands a fair punch on the other’s noggin. The other falls to the canvas, cut, bruised, bleeding, unconscious, and will awaken with minor brain damage. But the loser consented to the contest, consented to what might happen to him under the rules, and so the victor has committed no crime. This was not an assault.

The victor now goes home to find his wife asleep. Remembering a remark she’d made that morning about his looks, he gets pissed off and punches her in the face while she sleeps. She did not consent to that blow, and so he has committed an assault. Easy, right?

Later, the loser and the victor are out drinking. The loser notices that the victor is really drunk. Too drunk to really know what he’s doing. So he takes him to their gym, coaxes him into the ring, starts sparring with him, and lands a revenge punch that breaks the guy’s cheekbone. The victim was too drunk to consent, the other guy knew it, and that was an assault. The fact that the victim voluntarily got himself drunk doesn’t make him any less a victim. Easy, right?

That’s how it works with rape. Even if someone voluntarily got herself too drunk to consent, it doesn’t change the fact that she didn’t consent. Any victim of a crime who happened to be drunk at the time is still a victim.

(And to forestall the inevitable questions about how consent works, here’s a flowchart I did for the comic a while back.)

And that’s what’s going on with drunkenness. There’s no drunken double standard. Intoxication doesn’t absolve anyone of responsibility. Voluntarily getting yourself drunk isn’t going to absolve you of blame for your actions. And if you’re the victim of a crime, being drunk doesn’t make you any less a victim.

Hope this helps.

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6 Responses

  1. Hello,

    That was something need to be shared all among.
    Drunkenness often leads to double standards, this leads to confusion and the person who is all over
    drunked, do not know what is he doing all way. He might not be in senses and the act he committed could made,
    his life worst.

    Similarly now days, many cases are prevailing that, their own partners attempted to rape.
    This is due to this ill effect. If the victim doesn’t led her consent of having sex with her partner, while
    he is drunken, and if he forcefully does that act, that would be counted as a criminal offense.

    Thank you for sharing this informative post among us.

    Shantanu sinha

  2. CliveOI says:

    I think that some rules are more different than others!

  3. Jeff says:

    I can’t remember if this came up on the comic, but what then happens when both parties have (voluntarily and separately) blown their brains on absinthe, and know it. By what you’ve described above, they’d both be responsible for what they did (they knew the other person was drunk, or at least when they had the absinthe they knew what they were getting themselves into), and neither would be able to give consent. Can they both be convicted of rape?

  4. Jeremy says:

    Let’s extend your analogy. Two boxers both go and get themselves drunk (and both know that each other are drunk). Once they’re both drunk, one of them suggests that they get in the boxing ring and have a match, and the other agrees, so they both climb into the ring and both punch each other a lot.

    Who is guilty of assault? Both? Neither? Only the person who first suggested the idea? Only the person who threw the first punch?

  5. Jake says:

    Great article, but I am left with the same question as Jeremy above.

    In your scenario where the winner and loser are out drinking, you state that “the loser notices the victor is… too drunk to really know what he’s doing”. This is cut and dried, it’s someone taking advantage of a drunk person – you’ll get no arguments here.

    However how can we expect the ‘loser’ here to be responsible if they’re both drunk of their own volition? It seems illogical that the ‘loser’ here is deemed legally responsible for making a determination for both of them while the same legal system deems the ‘victor’ incapable of making a decision at all.

  6. Jake says:

    Followed the link to the flow chart you did, I agree fully with that and it clears up the question. Thanks!

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