I’m too drunk. No I’m not.

According to the Canadian Criminal Code, (self-induced) intoxication is no defence against charges of assault (33.1): if you’re drunk, you’re still able to form the general intent to commit said assault.

And yet, with regard to the sub-category of sexual assault, belief that someone is consenting is cancelled if that someone is intoxicated (273.1(2)): if you’re drunk, you can’t consent to sex.

So if you’re drunk, you’re capable of forming the intent to assault, but you’re not capable of forming the intent to have sex?  Given that it’s mostly men who do the assaulting, and it’s mostly women who do the consenting (and given, it’s my guess, that the lawmakers had men in mind for 33.1 and women in mind for 273.1(2)), is this some sort of ‘protect the weaker sex’ double standard?

Hey, if we expect men to foresee the effects of alcohol and to be responsible for their behavior while under its influence, we should expect the same of women.  Yes, it may be morally wrong to have sex with someone who’s drunk, even though she’s climbing all over you and moaning ‘do me’, especially if you suspect that if she were sober she wouldn’t be quite so willing – but you’re not her legal guardian.  ‘Yes’ means ‘yes’ and if she regrets it the morning after, that’s her headache.  Doing something really stupid is the risk you take when you get drunk (unless you’ve got a dependable designated sober friend with you).

If while drunk she says I can borrow her car, and I do so, am I really justly accused of theft?  Am I my sister’s keeper?  She said I could.  Do I have to second guess her?  She may well say I can borrow her car when she’s sober too.  Or not.  Am I supposed to know?  (Aside from it’s not always easy to tell if someone has had ‘too much’ to drink.)

The only way the difference can be justified is if in both cases we consider the man to be the agent, the only one doing the deed.  In the first case, that’s fine.  But in the second?  Well, okay, if she’s the one done to, I guess, maybe, he’s the only one who’s guilty.  But the tricky part is that then the legality of the deed depends on her behavior.  If she, drunk, does to him, she’s the one guilty of assault while intoxicated.


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