Can I Consent When I’m Not Sober?

Consensual sex can happen after using substances.

So, why do we state that consent is sober?

When we say that consent is sober, we mean free from significant cognitive impairment. We encourage people to have sex when they are sober rather than when they’re under the influence because we know people may say “Yes” to something that they would not have consented to when they were sober. They may be too impaired to properly interpret and process what they are consenting to. Substances make it harder to determine if you have consent and if you want to consent. We also know that the use of alcohol increases instances of sexual violence. Typically, we advise people to abstain from having sexual interactions while under the influence for these reasons.

Not Inherently Non-consensual

However, sexual interactions may happen while under the influence, and that doesn’t inherently mean they are non-consensual. Both parties can be okay with being drunk during sex, both can be upset about it, and only one party can be upset about it. All these experiences are valid. When we decide to have a sexual encounter with someone who has been using a substance, we assume the responsibility of ensuring they are not significantly cognitively impaired. If we are approached and told that someone felt like they were too drunk to provide consent when we had a sexual encounter with them, we need to respect how they feel and we should validate their feelings rather than tell them it was their fault.

There is a spectrum of how substances impair our functioning. At the lower end of the spectrum, we may feel some effects of the substance, but as we inch closer to the other end of the spectrum, the less we are able to provide informed consent. It can be difficult to determine how impaired someone else is by substances, as everyone displays signs differently. For example, the majority of U.S. states have decided that a person with a BAC of .08% is too cognitively impaired to drive. However, it may take more alcohol to cause the same level of impairment in someone else. Or, someone may be even more affected by a substance at the same dose due to sex, medications, height, weight, and the use of additional substances. 

People Can Become More Intoxicated After Consenting

Someone also may become more intoxicated throughout the interaction as substances metabolize, which is why our pillar of consent, “ongoing,” is especially important in these situations. Despite how differently individuals can be affected by substances, we have collectively agreed that there is a certain threshold at which a person is too impaired and is no longer able to drive a car. This is the same when it comes to consent.

Alcohol/Drug-Facilitated Sexual Assault

However, it is undoubtedly sexual assault when the person is visibly significantly cognitively impaired. If someone propositions you while they are significantly impaired, it is your responsibility to turn them down. It is also undoubtedly sexual assault to deliberately give someone substances with the intent to have sexual contact with them. The use of substances also never excuses any abusive behavior of any kind. People can commit sexual assault and sexual violence while under the influence. 

At the end of the day, sex under the influence of substances is not inherently non-consensual, but it makes it much more difficult to determine consent. All of these reasons are why we, overall, state that consent should be sober.

Support Is Available

988 Suicide and Crisis Lifeline

988 Lifeline is a national network of local crisis centers that provides free and confidential emotional support to people in suicidal crisis or emotional distress 24 hours a day, 7 days a week in the United States. We’re committed to improving crisis services and advancing suicide prevention by empowering individuals, advancing professional best practices, and building awareness.

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National Sexual Assault Hotline

RAINN is the nation’s largest anti-sexual violence organization. RAINN created and operates the National Sexual Assault Hotline in partnership with more than 1,000 local sexual assault service providers across the country.

Phone: 800-656-4673
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VictimConnect Resource Center

VictimConnect is a referral helpline where ALL crime victims can learn about their rights and options confidentially and compassionately. 

Phone and text: 855-4-VICTIM
Online chat: Monday-Friday from 9am to 5pm EST

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