Can Someone Consent to Sex if They’re Intoxicated?

  • By:David Bate

Criminal Defense Lawyer

Having sexual contact with someone who does not consent to that sexual contact is sexual assault, and is a serious felony that can subject you to penalties such as prison time and placement on the sex offender registry. It is not unusual to hear statements in the press or on social media about lack of consent as a result of intoxication. But, a lot of people have sex after having consumed alcohol or drugs. So, the question is, can someone consent to sex if they are intoxicated by drugs or alcohol?

The short answer is, yes, someone can still consent to sex if they are intoxicated by drugs or alcohol. Alcohol and drugs often lead people to make decisions that they might otherwise not make, but we don’t excuse the mistakes that we make while drunk or high simply because we voluntarily consumed a substance. For example, if you commit a crime after you voluntarily consumed alcohol or drugs, you aren’t any less guilty of committing the crime. Similarly, a person can’t claim that they didn’t consent to sex simply because they were high or drunk at the time. If a person consents, either by their words or actions, while drunk or high, they are still giving valid consent to sexual activity.

What people are really referencing in talking about being too intoxicated to provide consent is a situation in which someone is so intoxicated that they are physically unable to provide consent. For example, they are so drunk or high that they can’t move or are unconscious during the activity. Someone who is looking to engage in sexual activity with another person can certainly tell the difference between someone who is simply intoxicated but consenting and someone who is so intoxicated that they are unable to consent to sexual activity.

Indicators of consent can be either verbal or physical. Someone can verbally express that they want to engage in the sexual activity by making statements that indicate that they wish to complete the sexual act. Someone can also engage in physical acts that indicate consent, such as kissing someone, rubbing their hands on the other person’s body, removing items of their own clothing or items of the other person’s clothing, or touching the other person in their private areas. If a person is incapable of either giving their verbal consent or of engaging in any of the physical acts described above due to their intoxication, then they are not capable of consenting, and engaging in a sexual act with a person in that condition is clearly a crime.

If you have been accused of engaging in a sexual act with someone who claims to have been too intoxicated to consent to sexual activity, it is important that you contact an experienced sexual assault lawyer Grand Rapids, MI relies on before speaking to the police about the allegations.



Thank you to our friends and contributors at Blanchard Law for their insight into sex crimes and criminal defense.

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