Sexual consent is an important, complex and often awkward topic to talk about. And when people have been consuming alcohol or other drugs, it makes negotiating sexual consent even more complicated. Indeed, drawing the line between consensual sex and assault when a complainant is heavily intoxicated is a particularly difficult area of law.
What is clear though, is that context matters. The gender of the people having sex, their sexuality, the nature of their relationship and how they became intoxicated – whether willingly or unwillingly – all shape the judgements that we make about intoxicated consent.
The importance of context was brought to the forefront in the late 1970s and early 1980s, when the so-called “feminist sex wars” divided Western academics who were interested in gender equality. The debates were dominated by arguments over pornography and sex work, but the issue of sexual consent – and what it means for women living in a patriarchal society – was always present.
Context and consent
Influential legal scholar Catharine MacKinnon drew attention to society being organised in such a way that men hold the power; women’s consent and sexuality is, to some extent, conditioned and controlled by these power structures. MacKinnon’s contemporary, Andrea Dworkin, took this argument further. She claimed that women’s subordination underpins male sexual desire.
So, to give and receive consent meaningfully, there needs to be an awareness of the power dynamics at play, and the impact they have on the relationships among people. This raises questions about just how meaningful women’s sexual consent can be under patriarchy. When women are not on an equal footing with men, are they really “free” to make choices about sex with those men?
Others have highlighted the role that sexuality plays in shaping mainstream views about sexual consent. For example, anthropologist Gayle Rubin has argued that historically, sexual consent has been a privilege afforded only to those who engage in socially accepted (or even socially encouraged) sexual behaviour – that is, heterosexual, monogamous, procreative sex. In the UK, as recently as 1997, the age of consent was higher for same sex sexual activity than it was for heterosexual sex. So, even if individuals were freely choosing such sexual activity, their consent was not legally recognised.
Assumptions around gender and sexuality also affect the way people think about intoxicated sexual consent today. For example, consider the public response to the so-called chemsex phenomenon: chemsex refers to the intentional use of drugs – often methamphetamine, GHB and mephedrone – to enhance and prolong sexual encounters between men who have sex with men.
Read more: Chemsex exemplifies much wider issues with drugs and sexual consent
Chemsex has largely been portrayed as a public health crisis, with an emphasis on the potential for the transmission of HIV. Yet little attention is paid to the sexual violence and exploitation men might well experience in chemsex settings. By contrast, when chemsex is discussed in relation to heterosexual people, the issue of sexual consent moves to the forefront.
A worldwide survey
It’s useful to reflect on how categories such as gender and sexuality – and indeed race, ability and social class – might affect the way intoxication and sexual consent are talked about and understood. But while these categories are important, they are not enough to explain why certain intoxicated sexual experiences are perceived by those involved as consensual, and others not.
Based on an earlier project, for which Aldridge spoke with a diverse group of people who had had sex on drugs, it seems that in order to understand the complexity of intoxicated consent, it’s necessary to probe further into the specific contextual elements of sex on drugs. That might include the settings in which this activity takes place (sex club, house party, music festival), the type of drug being consumed (MDMA, cannabis, alcohol) and the nature of relationship between those having sex (one-night stand, long-term relationship, group sex).
Intoxicated consent can be negotiated successfully, but understanding how these other contextual factors affect sexual relationships is vital to addressing situations where it’s not. At present, only a fraction of sexual assault incidents are reported and even fewer result in convictions.
In 2013, the Global Drug Survey began to explore people’s experiences of intoxicated sexual consent. Out of 22,000 people, 20% reported having had been taken advantage of while intoxicated, while 5% said that this had happened in the last year. What’s more, 14% reported that they had been given drugs or alcohol by someone who intended to take advantage of them.
This year, the Global Drugs Survey is delving deeper. Researchers will be collecting contextual information from people who have been taken advantage of while intoxicated, including where they were, who they were with, their relationship with the person or people who took advantage of them and the type of drug they were using.
Cultural norms and tolerance for such behaviours vary between countries. Because the 2019 survey is translated into 22 languages, researchers will be able to compare outcomes across regions. The aim of this survey is to give a voice to those unable to speak out. The findings will be used to shape interventions that minimise harm and maximise support for people who have experienced sexual assault, while ensuring that perpetrators are correctly identified, and held responsible.
Take part in the 2019 Global Drugs Survey by clicking here.