How Does Consent Work When Both Parties Are Drunk?

How Does Consent Work When Both Parties Are Drunk

Consent stands as a fundamental pillar of respect and autonomy regarding sexual interactions. Consent indicates the agreement of all parties involved in any form of sexual activity. But do you know how does consent work when both parties are drunk?

Determining the validity of consent is a challenging task. So today, we will clear up the complexities of consent in situations where both parties miss consent under the influence of alcohol or other substances.

Let’s explore the legal framework and social implications in the context of Canadian law.

What is Consent in Canadian law?

In Canada, consent is the voluntary agreement of a person who is capable of consenting to engage in sexual activity. This definition emphasizes three key elements: voluntariness, capacity, and agreement.

  • Voluntariness: Consent must be freely given without coercion or pressure from partners.
  • Capacity: The individual must understand the capacity to consent when drunk before engaging in it.
  • Agreement: Consent must be explicit and obvious, leaving no room for doubt.

Consent cannot be assumed, implied, or forced. But it must be freely given, without pressure or manipulation from the two parties.

What is The Role of Drinking in Consent?

Intoxication can come from alcohol or other substances. It can significantly impact a person’s ability to provide valid consent. The level of intoxication can affect their judgment, understanding of the situation, and ability to communicate their wishes clearly.

How Does Canada Consent Laws Think about Drinking?

Recognizing The Consent

Canadian law recognizes that drinking can affect a person’s capacity to consent to sexual activity. In cases involving drinking, the courts ensure:

  • Whether they were capable of understanding the nature of the sexual activity
  • Whether they voluntarily agreed to the sexual activity
  • Whether they were not incapacitated due to intoxication or other factors

Assessing Capacity to Consent

The court requires a thorough assessment of the state of intoxication or drinking. They need to determine whether an individual is capable of consenting under the influence of alcohol or drugs. The considering factors are:

  • The amount of alcohol or drugs consumed
  • The individual’s level of impairment
  • Their ability to understand the nature of sexual activity
  • Their ability to make informed decisions about engaging in sexual activity

Determining Voluntariness of Consent

Drinking can affect the voluntariness of their consent even if an individual can consent. That means pressure or manipulation can still occur, even in situations where the individual has the mental capacity to understand the nature of the sexual activity.

Reasonable Steps to Ascertain Consent

In intoxication-involved cases, the “onus” is on the person seeking consent to take reasonable steps to ensure that the other person is consenting freely and voluntarily. This includes:

  • Ensuring that the individual is conscious and responsive
  • Assessing their level of drink
  • Checking for signs of coercion or pressure
  • Obtaining explicit and unambiguous consent

The Impact of Drink on Consent in Canadian Courts

Canadian courts have consistently held that intoxication alone does not negate consent. But there is a catch! If the drinking rate reaches a level of incapable consent, any sexual activity with that person is considered sexual assault.

Key Points to Consider When Both Parties Are Drunk:

  • Legal Definition of Consent: Highlight that consent in Canada requires a voluntary agreement, free from “coercion” or “incapacitation.”
  • Alcohol’s Impact: Discuss how alcohol impairs judgment and decision-making, affecting the ability to provide informed consent.
  • Legal Precedents: Review specific cases to showcase how the courts have interpreted consent in drunk situations.
  • Responsibility of Both Parties: Emphasize the responsibility of both parties in ensuring clear communication and mutual understanding, regardless of drinking levels.
  • Navigating Grey Areas: Acknowledge the challenges and grey areas in the law and how they might be navigated in legal contexts.

How to Navigating Consensual Encounters When Both Parties Are Drunk?

When both parties are drunk, navigating consent becomes even more challenging. It is crucial to:

  • Communicate openly and explicitly about consent
  • Be mindful of each other’s level of drinking
  • Respect each other’s boundaries
  • Avoid making assumptions about consent based on drinking

Revocation of Consent

Consent can be revoked at any time, even if it was previously given. If a person expresses their unwillingness to continue or engages in non-consensual acts, the sexual activity must cease immediately.

Legal Implications of Non-Consensual Sexual Activity

Engaging in sexual activity with someone incapable of consenting is considered sexual assault under Canadian law. 

This includes situations where the person is intoxicated to the point of incapacitation. Sexual assault is a serious criminal offence with significant penalties.

What Are The Indications of Being Drunk in Sexual Activity?

There are some symptoms when two people get drunk and have sexual relations. Indicators of drinking that may suggest a lack of capacity include.

  • Significant impairment in cognitive abilities
  • Inability to communicate clearly or coherently
  • Loss of physical coordination or balance
  • Extreme emotional volatility or mood swings
  • Memory lapses or blackouts
  • Impaired judgment and consent


That was all about how does consent work when both parties are drunk in Canada. Navigating consent in situations where both parties are drunk is present is a delicate and challenging task. 

In such cases, three things play an important role in ascertaining consent and are crucial for preventing sexual assault: understanding the legal framework, recognizing indicators of intoxication, and taking reasonable steps. 

So, by acknowledging the complexities of drinking and consent, we strive to create a society where sexual interactions are consensual, respectful, and free from harm.


What if both parties are drunk in sexual assault in Canada?

If both parties are drunk, it becomes even more important to ensure that consent is clear, unambiguous, and ongoing. Both parties should be able to understand the nature of the sexual activity and make the best decisions. If there is any doubt about whether either party is capable of consenting, it is best to avoid sexual activity altogether.

What if I am too drunk to remember what happened in the sexual assault?

Memory loss or blackouts can complicate the assessment of consent. If you cannot remember whether you consented to sexual activity, it is important to seek support and advice from a trusted friend, family member, or professional lawyer. They can help you understand your rights and options.

What if I am pressured into sexual activity while drunk?

Pressure, coercion, or threats can invalidate consent, even if you are drunk. If you feel pressured into sexual activity, it is important to say no and assert your right to bodily autonomy. You can also seek help from a trusted source or contact a sexual assault hotline.

What are the legal consequences of sexual assault involving drinking?

Sexual assault is a serious crime, and it can have severe legal consequences for the perpetrator. Even if the victim is drunk, it is still illegal to engage in sexual activity without their consent. If you have been sexually assaulted, it is important to report the crime to the police and seek legal support.