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The Trouble with Drink: Intoxication, (In)Capacity and the Evaporation of Consent to Sex

Research output: Working paper

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    Rights statement: Cowan, S. 2011 SSRN: University of Edinburgh, School of Law, Working Papers. Published open access via SSRN.

    Accepted author manuscript, 166 KB, PDF document

Original languageEnglish
Place of PublicationSSRN
PublisherUniversity of Edinburgh, School of Law, Working Papers
Number of pages17
Publication statusPublished - 2011


Feminists have analysed the problematic way in which rape law has evolved in the shadow of the mind/body dualism. This paper will extend this analysis to the problems arising when consent to sex is “intoxicated consent”. One central question is the whether consent is a state of mind or a set of actions or behaviours, performed in certain way, to signify consent. Whether one believes consent to be a state of mind or an action, adding intoxication to the mix renders the problem yet more intractable for criminal law. If consent is a state of mind then being in an intoxicated state can make it extremely difficult to come to a settled state of mind about consent since intoxicants clearly affect the cognitive capacities and it is often also of course, difficult for others to ascertain one’s state of mind. However if consent is an action, alcohol/drugs again can impair the physical and verbal abilities to the extent that action is either impossible or, again, difficult to read. Either way intoxication can render consent obscure. This paper offers a feminist critique of the criminal law’s treatment of the parameters of consent when the person giving consent is intoxicated.

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