Can drunk sex ever be consensual?

Sex. Consent. Education.
Sex. Consent. Education. 23:07

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Heavy drinking and sexual activity often go together on college campuses, and that's a troubling dynamic when it comes to the question of consent. According to Planned Parenthood, sexual consent is defined as:

  • Reversible. You can change your mind at any time during the encounter.
  • Specific. Consenting to kissing does not automatically mean you consent to going any further.
  • Informed. If you consent to sex with a condom, but then your partner doesn't use one, that is not consent.
  • Enthusiastic. You are excited and actively want to participate in what is about to happen.
  • Freely given. You're not pressured or making a choice under the influence of drugs or alcohol.

The last point, that consent can only be given without the influence of drugs or alcohol, is one that has created confusion and controversy, especially on college campuses where drinking and sexual experimentation are common. 

"A typical story that I got about a sexual encounter in college, whether it was a man or a woman, went something like, 'We were at a party. We were getting really trashed. We were drinking. And then, suddenly we're having sex in someone's room.' And consent is murky at best," said Donna Freitas, author of "Consent on Campus: A Manifesto."

There are clear instances of sexual assault or rape, like the case of Brock Turner, a former Stanford swimmer who was convicted of sexual assault after he was caught on top of an unconscious woman he met at a party, who was passed out near a dumpster.

A sign on the University of Maine, Farmington's campus outlines the meaning of consent. CBS News

Other stories aren't so clear cut. At what point does a drunken hook-up become criminal? 

Many universities say the line in the sand is between intoxication and clear incapacitation. Dartmouth College, for example, says signs of intoxication are slurred words, stumbling, or exaggerated emotions. The school defines incapacitation as incoherent speech, confusion about basic facts like the day of the week, and passing out. Someone who is clearly incapacitated is by definition unable to give consent.

"Some factors that should be considered when determining someone's ability to consent can include 1) Is this person coherent? 2) Does this person have a full grasp of what is happening around them? 3) Is this person able to communicate clearly?," said Morgan Dewey, the communications director for End Rape on Campus.

"If your answer is no to any of these questions or if you have even the slightest inkling that the answer may be something other than an enthusiastic yes, you should not move forward with engaging in sexual acts." 

This approach could help prevent a situation in which someone engages in a sexual encounter after a night of heavy drinking, and has no memory of the act the next day.

Liam Brinkler, a student at the University of Maine, Farmington, says he wants fellow students to understand that consent isn't just about "no means no." "Yes can also mean no in 20 minutes," he told CBS News. CBS News

"I feel like that's a weird gray area," Liam Brinkler, a senior at the University of Maine, Farmington (UMF) told CBS News. "There's pieces of your memory missing."

Brinkler added that in his experience, it's best to check in with your partner, and avoid sexual activity altogether if one or both people are drunk.

Fellow UMF senior Amy Fortier-Brown agrees. "I think it's a good rule of thumb to not have sex when you're drunk, even if it's completely normal in your relationship to," she said.

She offered her own relationship with her fiancé as a hypothetical example. If they are both drunk, and have sex, is that consensual?

"A lot of people are saying yes, when in fact, no," Fortier-Brown said. "Even though we're in a relationship, even though we've had consensual sex, even though we're both drunk, it does not matter. If one party is drunk or both parties are drunk, you cannot have consensual sex. And there is not implied consent in a relationship."

But she also acknowledged this is a complicated issue, and what works for her relationship might not work for everyone.

Amy Fortier-Brown speaks at a campus open mic night where students can share their thoughts about sexual assault. CBS News

"I don't think it's realistic to expect that everybody's gonna drop it and not have sex while drinking ... because a lot of people do see it as consensual."

"There is plenty of consensual sex that happens after drinking," said Dewey. "What we do have to recognize is that alcohol does affect decision-making. If every person partaking in a sexual encounter is drinking, it is important that all parties — especially the party that initiates sex or a new sex act — are continually and repeatedly checking in and getting consent. Alternatively, as the initiator, you should ensure that you are not too drunk to do the needed and necessary checking in."

Dewey's examples of checking in with a partner include questions like:

  • Do you like this?
  • Do you need a break?
  • Are you having fun?
  • What do you want to do next?

If a person is still "continually able to communicate their wants and needs" after drinking, Dewey said, that's a good way to determine their consent.

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    Cydney Adams

    Cydney Adams is a senior manager of social media for CBS News. She is also a digital producer focusing on culture and social issues.