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Legally, having sex with someone who is incapacitated is equivalent to having sex with someone who is unconscious, as they lack the required mental state to form a valid agreement The court of appeal found that consent does indeed require not only a person agreeing to sex, but also having the mental capability to do so A person can be drunk and still possess the capacity to consent
However, once they cross the threshold into incapacitation, any apparent agreement is legally invalid. What if person a wanted to have sex with person b, but then got too drunk to consent, and person a had sex with them anyway? Having sex with a person who has consumed alcohol is not necessarily rape, many if not most couples have sex for the first time under the influence of alcohol
The question, as others have pointed out, is whether the person had sufficient capacity to consent given her mental state
If not, than it is rape. If they are both drunk, and have sex, is that consensual The intersection of alcohol and sexual consent is a complex legal issue The law defines consent and clarifies how intoxication affects a person's ability to give it
When both parties have been drinking, the situation requires an examination of each person's capacity The legal system applies fundamental principles of consent to the specific facts of the case Having sex is generally something that two people do At least one of them has to do it actively, or nothing happens
The law requires that both parties should consent to having sex, and being mentally capable of consenting is a requirement.
Navigating sex can be complicated, especially if alcohol or other drugs are involved Here are answers to some of the trickier questions around drinking, sex and consent. The legal issue is whether the person was intoxicated to the point of being unable to consent to sex It is unlikely (but not impossible) that the state would take up a sexual assault charge two years later under these facts.
The criminal code says it's a crime to have sex with someone who's too drunk or high to consent, even if the person doesn't resist or fails to say no.
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