Incapacity is more than mere intoxication. Our courts have made clear that a drunk person – even if they are very drunk – can consent to sexual activity.
However, sometimes one’s intoxication is so extreme that they are incapable of consenting. Incapacity means that a person cannot make a voluntary and informed decision about whether to partake in sexual activity. In other words, they are out of it.
Engaging in sexual activities with someone who lacks the capacity to consent is sexual assault.
What proves incapacity to consent?
Consent requires the capacity to understand: (1) the physical act; (2) that the act is sexual in nature; (3) the identity a sexual partner or partners; and (4) the choice to refuse to participate in the sexual activity.
A court must find beyond a reasonable doubt that at least one of these four things was absent to conclude that a person was incapable of consenting to sex.
In many cases, the Crown (prosecutor) relies on blood-alcohol measurements or estimates to determine how intoxicated a person was at a particular time. This evidence is called toxicology. But scientific evidence is often unavailable. In these situations, the Crown may introduce other indicators of incapacity. Such indicators might include but are not limited to:
- significantly slurred speech
- loss of bladder or bowel control
One of these indicators alone might establish incapacity. For instance, a court may conclude that a person who consumed so much alcohol that they could not articulate words was incapable of consenting.
In other situations, one indicator alone is not enough for proof beyond a reasonable doubt.
Can someone consent if they get blackout drunk?
Courts frequently have reasonable doubt when the Crown’s case depends almost entirely on memory loss. The law provides that lack of memory on its own does not prove incapacity. A person may not remember any part of a sexual encounter yet still have had the capacity to consent. Blacking out does not necessarily mean incapacity.
Speak to a lawyer experienced in sexual assault and issues surrounding consent
As you can probably imagine, this area of law is complex. If police charge or are investigating you for sexual assault, the most prudent thing to do is to speak with a lawyer as soon as possible. Call (416) 999-8389 to speak to a lawyer now.