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Substances and Consent

Resource

Many people have questions about the dynamics of consent when they, and/or their partners, have been drinking or using drugs. 

There are a few realities we must face when it comes to alcohol, drugs, and consent:

  • If and when partners are drinking or using substances, consent continues to be important and necessary.
  • Drinking and/or using other substances can impair our judgment, affect our ability to communicate, and impact our ability to read and interpret others’ communication. This makes it much harder to give consent or determine if you have consent.
  • Research shows that alcohol and other substances are often used by perpetrators to facilitate pre-meditated sexual violence. 

Consent in Brown’s Title IX Policy

Intoxication and Consent

It can be difficult to determine how intoxicated is too intoxicated to consent. There is no way to be sure how substances are affecting someone. This is due to the different ways each individual’s body processes and responds to alcohol and other drugs. If you find yourself in a potential sexual encounter where you are asking yourself if any of the involved parties are too intoxicated to consent, the answer is likely that they are. Consent needs to be a willing and freely made decision. If someone is incapacitated, they cannot give consent.

If you are unsure if your partners are too impaired to consent to sex, it is best to assume that they cannot consent.

Incapacitation

Incapacitation is the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. Where alcohol or other drugs are involved, evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects a person’s: decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person. 

Someone who is intoxicated may be able to consent to sexual activity. Someone who is incapacitated cannot consent to sexual activity. It is therefore essential to be able to recognize signs of incapacitation.

Signs

For depressants (substances like alcohol, GHB, Rohypnol, and painkillers), possible signs of incapacitation can include:

  • Inability to speak coherently
  • Confusion on basic facts (day of the week, birthdate, etc.)
  • Inability to walk unassisted
  • Passing out

If your partners are showing signs of incapacitation, STOP. For more information about the definition of incapacitation in Brown’s Title IX Policy.

Someone who is intoxicated (but not incapacitated) may be able to consent to sexual activity. However, it is important to check in with yourself about why you want to be intoxicated to have sex or why you want to be with someone who is intoxicated when choosing to have sex.

Consent if You've Been Drinking or Using other Drugs

Yes, it is possible to establish consent if you and/or your partner(s) have been drinking or using other drugs. Consent cannot be obtained through the use of coercion or force or by taking advantage of the incapacitation of another individual. If anyone is incapacitated for any reason, they cannot give consent. 

If someone has been using alcohol or other drugs and you are thinking about having any kind of sexual interaction with them, it is your responsibility to check in, ask, and make sure they consent to what is going on. Being intoxicated yourself does not absolve you of the responsibility of obtaining consent. If you are unsure whether you can establish consent, don’t have sex.

Consent if Both/All of Us Have Been Drinking or Using Drugs

It is okay to have sex when drinking or using other drugs, but all of the rules of consent still apply. What is most important in a situation like this, is that it's the responsibility of the person initiating sexual action to be sure their partners are able to give consent. Checking-in is especially key throughout a sexual encounter like this. If there is any uncertainty about whether someone is incapacitated, don’t have sex.

Things to keep in mind if using substances and hooking-up.

“Hooking up” means different things to different people. Make sure you and your partners are aligned on what each of you are okay with doing.

Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has freely and affirmatively chosen to engage in sexual contact.

Communication about sex and relationships can be difficult and awkward for people even when they are sober and know each other well. Adding alcohol and other substances into the equation can significantly complicate that communication.

Substances impact people in different ways based on a person’s body size, tolerance, amount of substance consumed, medications already in someone’s system, etc. If you have any questions about how close you are to the line between intoxication versus incapacitation, stop. Consensual and pleasurable sex is nowhere near that line.

If a “yes” is achieved through coercion, then it is not consent. For example, if someone buys someone else drinks, or walks them home, they are not owed anything and should not use guilt or intimidation tactics in order to engage in sexual activity. Power dynamics can come into play when someone holds a more privileged identity than someone else (e.g. an able-bodied partner and someone with a disability; a person with white-skin privilege and a darker skinned person; a man and a woman).  It is important to be aware of the ways that power can impact decisions around consent.

STOP and check in. 

Support Resources

There are support services available at Brown and in the community.

View a List of Resources

Related Links

Consent

Consent is a concept that can be applied to everyday social interactions as well as sexual experiences. People have a variety of values around bodily autonomy which may impact their preferences around physical interaction, so it is important to speak with people ahead of time about their expectations and personal boundaries.
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Title IX Policy

The purpose of this Title IX Policy (“Policy”) is to set forth the obligations of Brown University (“Brown” or “the University”) to prohibit Sex Discrimination in accordance with Title IX of the Education Amendments of 1972 (“Title IX”).
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College Drinking: Changing the Culture

Click on the section for students to find out about myths and facts, take an interactive tour of the flow of alcohol through the body or learn about alcohol poisoning. You can use the Calorie Counter to learn about the number of calories in different drinks and you can send an eCard to someone who's drinking worries you.
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