Alcohol, other drugs and consent

If you’re too drunk or high, you can’t give consent. If you’re engaging in sexual activity with someone who's drunk or high and doesn’t know what’s going on, they can’t give informed consent. 

A lot of sexual harm occurs when alcohol is involved. A New Zealand report from 2013 estimates more than 10,000 sexual assault occur each year in New Zealand involving a perpetrator who has been drinking (Rankine, 2013). Alcohol and other drugs do not cause sexual harm to occur, however they do impact on the way we communicate and because communication is a huge part of gaining consent, consent is therefore affected too. Additionally, the perpetrator’s inhibitions and empathy levels towards the victim, and the victim’s cognition and ability to recognize red-flags are impacted, which also result in an increased likelihood of sexual harm.  

Communication is key to gaining consent, so if people have drunk or taken too much, they can’t communicate clearly and are therefore too drunk or too high  to consent to engaging in sexual activity. If someone is too intoxicated to engage in sexual activity, STOP. It’s best to wait until they’re sober. If people don’t stop, this is called drug-facilitated sexual violence and it is illegal. The New Zealand law states that if someone is too intoxicated, they cannot give their consent to sexual activity.

Common questions

What if both people engaging in the sexual experience are intoxicated. Does that cancel the law out?  

If two people engaged in sexual activity while intoxicated, and afterwards one person claimed it was non-consensual, usually the person who initiated that sexual activity would be responsible. However, it is a grey area and it would be looked at on a case-by-case basis. If someone perpetrates sexual harm while they are intoxicated, they are still responsible for that harmful action. Being intoxicated is not an excuse for perpetrating sexual harm or hurting another person. 

How drunk/high is too drunk/high? 

This is a tricky one because everyone has different tolerances to alcohol and other drugs, and sometimes people can be wasted but it doesn’t show. That’s why it's best to wait to engage in sexual activity until everyone is 100% sober and able to consent. Some ways we can tell that people are too drunk or too high to consent include but are not limited to, when they are: 

  • Sleepy or dazed 
  • Vomiting or passing out 
  • Can’t communicate clearly  
  • Can’t walk in a straight line.

I’ve had sexual experiences while intoxicated and I was okay with them, as was the other person/people involved. 

That is totally fine and very common - people are free to define their own experiences. The law is there to protect people from being taken advantage of when they are intoxicated and therefore have less power than someone who is sober. This is not to say that people can’t have great sexual experiences when they’ve been drinking or taking other drugs. The key word is ‘TOO’ – if someone is TOO drunk or TOO high, they cannot legally give their consent to sexual activity. 

Five key things to remember

  1. Sexual harm is never the fault of the victim no matter how much alcohol or other drugs they have consumed. It is always the responsibility of the person who has taken advantage, and has therefore perpetrated the harm. 
  2. Alcohol and other drugs do not cause sexual harm, however alcohol and other drugs impact on our communication skills and the ability to gain consent, therefore increase the likelihood of someone being taken advantage of, and of sexual harm.
  3. This law is there to protect people from being taken advantage of, not punish people for engaging in alcohol and drug consumption. 
  4. Not every sexual experience that involves alcohol or other drugs is sexual harm. People define their own experiences.  
  5. Regretful sex while intoxicated is different to sexual harm that involves alcohol and other drugs. Sometimes people’s experiences of sexual harm when intoxicated are invalidated and branded ‘just regretful sex.’ This is not okay and people who have experienced sexual harm, no matter the circumstances, have the right to seek support. If you have any confusion around this, whether it be regret or uncertainty, you can call Safe To Talk.