Intoxication, Consent, Analogies, & Fallacies

I received a question on my ask.fm account (www.ask.fm/mattinnominate) which warrants a response that’s a lot more detailed than the character limit at ask.fm provides for. The question was as follows:

“Why is it my fault if they're drunk and we chose have sex, but there fault if they're drunk and choose to drive a car?”

Grammar aside, the first thing that jumps out to me with this question is how bad the analogy is. The two things the analogy is comparing are not at all alike.

In scenario #1, we have two people, presumably in a private space. One person is intoxicated, and the other person may or may not be intoxicated. There is not imminent risk to other people, aside from the two parties involved.

In scenario #2, we have a person and a car (an inanimate object), with the car presumably being driven in a public space. The person driving the car is intoxicated. There is imminent risk to other people, aside from the person driving the car.

The analogy could be made a bit better if scenario #2 were different. For example, I think it would be a bit more analogous if a potentially sober potentially intoxicated person egged an intoxicated person into driving the car. It'd be even better if that person hopped in the passenger seat, and the car was being driven in a private space where only the two aforementioned parties were in actual danger.

Even this better analogy leads to a false comparison, though, which is a prime example why making an argument from an analogy can be a fallacy.

To even begin to analyze scenario #1, we need to know how intoxicated the first person is, how intoxicated the second person is (if at all), and how intoxicated they are relative to each other. Depending on the answers to those questions, having sex with the person might be rape, or it might be ethically fine, or it might not be rape but be in an ethically and/or legally grey area. Even worse, there are more questions to consider, because the impairment effects of alcohol are not instantaneous upon consuming it; what if at the start of the act, both parties are capable of consent from a legal standpoint (more on this later), but partway through the act one of the parties is no longer capable of consent from a legal standpoint; obviously, there is some dividing line between legal and not legal, rape and note rape due to lack of ability to consent, and that dividing line is unknowable right at its limits, but when you get far enough from the limits, is quite obvious.

It's not the intent of my post to determine what is rape and what isn't rape in this scenario, because that's not possible, as it's determined after the fact, the determination is partially subjective, and rests highly on a lot of other factors that shouldn't matter (or shouldn't matter as much as they do) like how well acquainted the two parties were (i.e. total strangers versus friends versus dating versus married), how various laws are specifically written, precedents, the gender(s) of the respective parties, and so on and so forth.

I will offer the advice, which is not in any way legal advice, that you shouldn't have sex with someone if you'd be *at all* nervous about either your or their ability to safely perform an action that might be dangerous to others or to themselves. Examples might include driving a car, splitting firewood, operating a firearm, or any number of other things. If there's even a small fraction of a chance their judgment is too impaired to consent, don't have sex. Rape isn't cool, and not being a rapist isn't difficult.

The main reason I thought this question deserved a longer reply was not because it was actually any good (A simple "yes, it's your fault if they're too impaired to consent, and your analogy sucks" might have been sufficient). It's because it raises some interesting questions on its own.

The first question is that, legally or ethically speaking, how is it that a person who intoxicated at a certain level can be held responsible for exercising the judgment to drive a car, recklessly endangering other people and themselves in the process, but simultaneously be deemed incapable of exercising the judgment to have sex? The only real answer here is that there's a compelling state interest to protect the public, and one way of doing that is holding drunk drivers accountable for their actions. Quite by accident (and also interestingly), this is almost entirely consistent with how we might expect a system that operates without the presupposition of free will to behave, unlike how much of the rest of our justice system behaves (although, punishment versus rehabilitation is where the rest of the system generally diverges).

The second question is that given the impairment effects of alcohol are continuous (or at least, continuous at every level until death occurs, so continuous for everything we're talking about), how is it there can be any kind of clear delineation between too impaired and not too impaired? There isn't really a good answer here. One answer is that there's a dividing line, perhaps arbitrary, but that it's impossible to know for certain where that line actually falls. It's not a very satisfying answer, though, is it? Wherever that line falls, is it reasonable to assume that a single less alcohol molecule in the total blood volume of the person would then put the person into the "able to consent" category again? No, it's not, so that unknowable dividing line seems to be an inconsistently placed unknowable dividing line, at that. There is at least tiering of drunk driving offenses, based on blood alcohol concentration. There appears to be no such parity as far as sex goes, at least as far as I can tell based on my searches on the topic. There also appears to be no real standard for when both parties involved in a sex act are too intoxicated to consent, especially if there's a different level of intoxication between them. I have no idea why there aren't any (that I was able to find) attempt to codify such things into the law, but my guess is that the reason is purely political, which is somewhat unfortunate, although simultaneously enlightening about some governmental dysfunction.

 A third question, closely related to the first question, is regarding differing levels of intoxication in two parties who are both too intoxicated to consent. Did they both rape each other?  Is there no crime? Is the less intoxicated party guilty of rape, but not the more intoxicated party? There's of course no definite answer to the question (unlike there is when we're not talking about inability to consent due to intoxication, but instead when we're talking about inability to consent due to age).