this post was submitted on 14 Sep 2023
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Depends primarily on prior agreement.
If before being drunk both parties stated something along the lines of "let's get drunk and have sex" and both agreed then it is obviously consensual. Grabted consent can be removed at any point but if neither party states/shows intention to back out it is safe to assume that there was consent during the act even if both parties were drunk because they'd agreed to it beforehand.
An important distinction to make is between the prior scenario in which both people agree with each other and one where I (hypothetical I) go to an event where it is explicitly stated that there will be a lot of alcohol and sex, I know of this fact and I agree that I want to have sex whike drunk. This is because while the assumption of consent still holds true it is an assumption as I need to know beforehand what I'm getting into and it's not exactly a given that I would consent to having it with anyone at that party over specific people. This obviously complicates things. Essentially everyone involved would need to be on the same page as tonwhat they're getting into and agree beforehand that they want to have sex whike drunk and with whom.
If there's no prior agreement the safest bet is don't have sex with drunk people. Naturally if both are at an equal level of drunkenness (β equal amount of drinks) it is difficult to assign blame but that doesn't mean both consented. It also depends on the level of drunkenness: two buzzed people who are still capable of understanding what is going on, can still communicate and are just less inhibited can probably still consent, two passed out drunk people cannot consent.
And a state of intoxication can prevent someone from being able to express the desire to remove consent. It is entirely possible to start an encounter with that capability, and have an intoxicant ingested before the encounter take away that capability after the encounter has begun.
Let's complicate the hypothetical further: Both parties are fully sober, and agree to a sexual encounter, in which Party One will pretend to be blacked out. Party One ingests an intoxicant in secret, and actually blacks out after the encounter has begun. Is Party Two guilty of a crime?
In your hypothetical, party one is the guilty one. By lying, they've altered the situation and therefore doesn't actually have party two's consent (in the same way "stealthing" changes the equation).
Sure a state of intoxication can remove the ability to consent and that is something the two need to discuss beforehand too, but if here both are equally drunk or they agreed to it at any level of drunkenness, nobody can read minds so going by the information available to any person we can say there was consent because they agreed beforehand. If any part specifies "it's ok unless we get too drunk" then it's a different case of course.
I don't fully understand what you mean in the second question, is part one agreeing to pretend to be blacked out but then blacks themselves out without part two knowing? Or is part one not knowing they are getting knocked out drunk? Because in the first case, where Person 1 agrees to have sex when pretending to be blacked out but then secretly blacks themselves out then person 2 is innocent and if anything the victim since they consented to having sex with the other person pretending to be in an intoxicated state and not necessarily actually being in that state. If it's the second scenario then person 2 is completely guilty because person 1 did not agree to having sex while being blacked out