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Speaker: Alan Wertheimer, Senior Research Scholar, Department of Clinical Bioethics, National Institutes of Health; John G. McCullough Professor of Political Science Emeritus, University of Vermont
Alan Wertheimer, Research Fellow in the Department of Clinical Bioethics at the National Institutes of Health and John G. McCullough Professor of Political Science Emeritus at the University of Vermont, spoke about intoxicated consent to sexual relations. We typically think, he said, that it's permissible to have sex with someone if and only if that person consents. Setting aside questions about the nature of consent generally – for example, whether it is (merely) a mental state or a mental state plus the external indication of that mental state – Professor Wertheimer directed his attention to a narrower question, namely, the nature and consequences of intoxicated consent.
Professor Wertheimer began by delimiting his subject. For the purposes of this lecture, he was interested in cases where (a) someone unambiguously tokens consent, (b) consent is tokened while that person is intoxicated, (c) the intoxication is voluntary, and (d) the intoxication distorts the person's judgments. (See Professor Wertheimer's lecture handout for a list of cases). The aim was to examine such cases in light of the following three questions: Is it morally impermissible to have sex with someone in any such cases, and, if so, which ones? Should having sex with someone in such cases be regulated institutionally by means of, for example, student codes of conduct? Should it be legally criminalized?
Some people think that it's "axiomatically" true that sex with someone who tokens consent while intoxicated is morally impermissible. These people affirm the intoxication Claim, the claim that intoxication entails the invalidity of consent. Others think that it is "naturally" true that sex with someone who tokens consent while voluntarily intoxicated is morally impermissible. Both sets of people accept the:
Impermissibility Claim. If B tokens consent to sexual relations with A while B is voluntarily intoxicated, it is all-things-considered impermissible for A to have sexual relations with B.
People who reject the Impermissibility Claim and say (with most undergraduate students) that it is permissible for A to have sex with B may rely upon some combination of the following three claims.
Responsibility Claim. If B's intoxication is voluntary, then we should treat B as responsible for her intoxicated behavior.
(Responsibility Entails) Validity Claim. If B is responsible for her intoxicated behavior, then her intoxicated consent must be treated as valid; and A's having sex with her is therefore permissible.
Consistency Claim. If people should be responsible for wrongful acts committed while intoxicated (including acts of violence against women), then we must also treat B's consent as valid; and A's having sex with her is therefore permissible.
Professor Wertheimer pointed out that, unless the Responsibility Claim is true, we can't hold men responsible who, while they themselves are voluntarily intoxicated, have sex with women who token consent while intoxicated. We also can't properly hold such men responsible unless both the Validity Claim and the Consistency Claim are false.
Professor Wertheimer rejects the Validity and Consistency claims, but accepts the Responsibility Claim, at least for the sake of argument. In this lecture, he reviewed four arguments one might give for the Responsibility Claim.
The Reasoning View. We should refuse to recognize voluntary intoxication as an excuse for wrongdoing because intoxication never (or rarely) defeats a person's ability to reason about his obligations and to act in accordance with those obligations.
The incentive View. To excuse wrongful acts committed while intoxicated would encourage people to become intoxicated as a way of immunizing themselves from responsibility for their behavior or, less strongly, it would give people less incentive not to become intoxicated and thereby put others at greater risk.
The Flow Through View. We can justifiably ascribe responsibility to an agent for voluntary intoxicated behavior, even though she does not possess the requisite psychological capacities at the time of the relevant behavior, if she had the requisite capacities at the appropriate prior time.
The Dual Self View. B's responsibility for her behavior chronologically tracks her psychological capacities. If at Time-1, B chooses to become severely intoxicated, then she is a non-responsible agent at Time-2 because she cannot then guide her behavior by the appropriate reasons. We may hold B responsible for the behavior that gave rise to the nonresponsible B, but it is the Time-1 B and not the Time-2 B to whom are reactions are (mostly and) ultimately directed.
Wertheimer rejected the Reasoning View because, sometimes, it's plainly false that intoxication does not impair a person's ability to reason. He also rejected the incentive View, saying that although incentives can be a part of the story, a view that explains responsibility solely by reference to incentives is not a deep enough account of responsibility.
Professor Wertheimer went on to say that, even though some argument in favor of the Responsibility Claim is probably correct, we shouldn't automatically conclude that sex with intoxicated people who are responsible for their intoxicated tokens of consent is morally permissible, or that it shouldn't be regulated and/or criminalized. On the one hand, we have to ask not only whether the intoxicated person is responsible, but also what she is responsible for. On the other hand, the standards and justifications for moral responsibility, institutional regulation, and criminal liability are different and come apart.
The central question is whether the consent of an intoxicated person who is responsible for tokening consent authorizes otherwise-impermissible actions of people who respond that consent. Call this the Authorization Question. The fundamental consideration, Wertheimer proposed, seems to be what is at stake for the people involved. For instance, we typically think that intoxicated consent to medical treatment and/or medical research never authorizes a doctor's actions. We probably think this because we think that a more permissive rule would expose people to unreasonable risk of harm. Relatedly, when we consider whether the consent of a fourteen year old girl who wants an abortion authorizes a doctor to perform one, we worry not only whether the consent of a fourteen year old girl is compromised, but also about the consequences of not allowing her to consent to abortion.
College students tend to reject the Impermissibility Claim and say that it’s not impermissible to have sex with a voluntarily intoxicated person who tokens consent while intoxicated. But when these students are asked whether, if they had sold their expensive car for $1000 while drunk, it would be permissible for the buyer to insist on the deal, they deny that it would permissible, and they profess a change of mind about the sex case. This pattern of response suggests that what drives people’s answers to the Authorization Question is their judgment about the importance of the interests at stake. (It may be that, for many college students at least, the interest in having only fully-consensual sex is in some sense less important than in having and keeping one’s material goods).
The same consideration may be at work in the law, though perhaps not consistently. In Vermont, tattooing an intoxicated person is illegal. For purposes of sex law, too, some states have adopted the Impermissibility Claim as law. By contrast, most states permit gambling while intoxicated, even permit casinos to ply gamblers with free alcohol, but do not allow gamblers to recover losses they sustained while intoxicated. Gambling losses can ruin people’s lives. If the harm that results can be more serious than (or at least as serious as) the harm that results from sex with intoxicated consent, and if we think that the rules about gambling should be as permissive as they are, then why shouldn’t the rules be significantly more permissive than they are with respect to sex with intoxicated consent? As with gambling, there is the thought that, for some people at least, intoxication increases the pleasure of sex. If that is true, then rules that restrict intoxicated sex (or restrict it more than intoxicated gambling) may be wrongly restricting people’s freedom.
According to Professor Wertheimer, all of these considerations speak to a need for a theory of harm, and, in particular, a theory of the harm (if any) that results in cases of sex with intoxicated consent. Such a theory will have to identify the harm that results in the “pure” case of sex with intoxicated consent, namely,
New Year’s Eve. A and B, a married couple, get roaring drunk at a New Year’s Eve party. They take a cab home, stagger upstairs, and have sex.
Assuming there is no marital exception for rape, there must be something wrong with the couple’s actions in the New Year’s Eve case if there is to be something wrong with the mere fact of giving and/or acting on intoxicated consent.
Professor Wertheimer ended with the suggestion that we may well want to have different rules for intoxicated consent to different activities – for instance, sex, tattooing, and gambling. For some people, tattoos are serious, while sex is just sex. For others, the opposite is true. To settle on rules, we may want to ask, among other things, which rules people would want for any given activity, if they had a choice of rules.